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1 II Federal Register / Vol. 67, No. 84 / Wednesday, May 1, 2002
The FEDERAL REGISTER is published daily, Monday through SUBSCRIPTIONS AND COPIES Friday, except official holidays, by the Office of the Federal Register, National Archives and Records Administration, PUBLIC Washington, DC 20408, under the Federal Register Act (44 U.S.C. Subscriptions: Ch. 15) and the regulations of the Administrative Committee of Paper or fiche 202–512–1800 the Federal Register (1 CFR Ch. I). The Superintendent of Assistance with public subscriptions 202–512–1806 Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official edition. General online information 202–512–1530; 1–888–293–6498 Single copies/back copies: The Federal Register provides a uniform system for making available to the public regulations and legal notices issued by Paper or fiche 202–512–1800 Federal agencies. These include Presidential proclamations and Assistance with public single copies 1–866–512–1800 Executive Orders, Federal agency documents having general (Toll-Free) applicability and legal effect, documents required to be published FEDERAL AGENCIES by act of Congress, and other Federal agency documents of public interest. Subscriptions: Paper or fiche 202–523–5243 Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless the Assistance with Federal agency subscriptions 202–523–5243 issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see http://www.nara.gov/ fedreg. What’s NEW! The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication Federal Register Table of Contents via e-mail established under the Federal Register Act. Under 44 U.S.C. 1507, Subscribe to FEDREGTOC, to receive the Federal Register Table of the contents of the Federal Register shall be judicially noticed. Contents in your e-mail every day. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases If you get the HTML version, you can click directly to any document on GPO Access, a service of the U.S. Government Printing Office. in the issue. The online edition of the Federal Register is issued under the To subscribe, go to http://listserv.access.gpo.gov and select: authority of the Administrative Committee of the Federal Register Online mailing list archives as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each FEDREGTOC-L day the Federal Register is published and it includes both text Join or leave the list and graphics from Volume 59, Number 1 (January 2, 1994) forward. Then follow the instructions. GPO Access users can choose to retrieve online Federal Register documents as TEXT (ASCII text, graphics omitted), PDF (Adobe Portable Document Format, including full text and all graphics), or SUMMARY (abbreviated text) files. Users should carefully check retrieved material to ensure that documents were properly downloaded. On the World Wide Web, connect to the Federal Register at http:/ /www.access.gpo.gov/nara. Those without World Wide Web access can also connect with a local WAIS client, by Telnet to swais.access.gpo.gov, or by dialing (202) 512–1661 with a computer and modem. When using Telnet or modem, type swais, then log in as guest with no password. For more information about GPO Access, contact the GPO Access User Support Team by E-mail at [email protected]; by fax at (202) 512–1262; or call (202) 512–1530 or 1–888–293–6498 (toll free) between 7 a.m. and 5 p.m. Eastern time, Monday–Friday, except Federal holidays. The annual subscription price for the Federal Register paper edition is $699, or $764 for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $264. Six month subscriptions are available for one-half the annual rate. The charge for individual copies in paper form is $10.00 for each issue, or $10.00 for each group of pages as actually bound; or $2.00 for each issue in microfiche form. All prices include regular domestic postage and handling. International customers please add 25% for foreign handling. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard or Discover. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 67 FR 12345.
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2 III
Contents Federal Register Vol. 67, No. 84
Wednesday, May 1, 2002
Agency for International Development Coast Guard NOTICES RULES Reports and guidance documents; availability, etc.: Ports and waterways safety: Information disseminated by Federal agencies; quality, Houston and Galveston ports, TX; security zones, 21576– objectivity, utility, and integrity guidelines, 21620 21578
Agricultural Marketing Service Commerce Department PROPOSED RULES See Census Bureau Cranberries grown in— See Economic Development Administration Various States, 21853–21866 See International Trade Administration NOTICES See National Oceanic and Atmospheric Administration Lamb promotion, research, and information order, 21620– NOTICES 21621 Agency information collection activities: Submission for OMB review; comment request, 21629– 21631 Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service Consumer Product Safety Commission See Forest Service NOTICES Hunting tree stands and ban of waist belt restraints used with stands; safety standard; petition request, 21640 Animal and Plant Health Inspection Service RULES Plant-related quarantine, domestic: Customs Service Karnal bunt, 21561–21566 NOTICES PROPOSED RULES Automation program test: Livestock and poultry disease control: Automated Commercial Environment, first phase; ACE Foot-and-mouth disease; indemnification, 21933–21959 Account Portal, 21800–21801
Census Bureau Economic Development Administration NOTICES NOTICES Census 2000: Trade adjustment assistance eligibility determination Qualifying urban areas; list, 21961–21967 petitions: RST & B Quilting & Bedding, Inc., et al., 21631–21632 Centers for Disease Control and Prevention NOTICES Education Department Agency information collection activities: NOTICES Proposed collection; comment request, 21685–21686 Agency information collection activities: Submission for OMB review; comment request, 21686– Proposed collection; comment request, 21640–21641 21687 Proposed collection; comment request; correction, 21641 Grants and cooperative agreements; availability, etc.: Grants and cooperative agreements; availability, etc.: Community-Based Intervention with Popular Opinion Information disseminated by Federal agencies; quality, Leaders to Achieve Syphilis Elimination, 21687– objectivity, utility, and integrity guidelines, 21641 21691 Postsecondary education— Hepatitis curricula for inmates and correctional staff; American Indian Tribally Controlled Colleges and distribution and evaluation, 21691–21693 Universities Program, 21642–21644 Child Care Access Means Parents in School Program, 21644–21645 Centers for Medicare & Medicaid Services Teacher Quality Enhancement Program, 21642 See Inspector General Office, Health and Human Services Meetings: Department National Assessment Governing Board, 21645–21646 PROPOSED RULES Medicare: Upgraded durable medical equipment; payment; Energy Department withdrawn, 21617–21618 See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission NOTICES Children and Families Administration Meetings: NOTICES Environmental Management Site-Specific Advisory Grants and cooperative agreements; availability, etc.: Board— Child Care Policy Research Discretionary Grants, 21693– Idaho National Engineering and Environmental 21706 Laboratory, ID, 21646–21647
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Energy Efficiency and Renewable Energy Office Federal Communications Commission RULES RULES Consumer products; energy conservation program: Common carrier services: Test procedures— Non-dominant carriers; Communications Act Section 214; Dishwashers; correction, 21566–21567 domestic authorizations; streamlining measures implementation Environmental Protection Agency Correction, 21803 RULES Radio stations; table of assignments: Air pollutants; hazardous; national emission standards: Arizona, 21581–21582 Pesticide active ingredient production; withdrawn, 21579 Arizona and Texas, 21582 Air pollution control: Pennsylvania, 21581 Interstate ozone transport reduction— Various States, 21580–21581 Nitrogen oxides State implementation plan call and PROPOSED RULES Section 126 petitions; response to court remand, Radio stations; table of assignments: 21867–21901 California, 21618 PROPOSED RULES NOTICES Air pollutants, hazardous; national emission standards: Common carrier services: Miscellaneous organic chemical and coating Sprint Communications Co., L.P.; telecommunications manufacturing, 21612–21613 services between United States and Cuba, 21682 Air pollution control; new motor vehicles and engines: Reports and guidance documents; availability, etc.: Nonroad large spark ignition engines and recreational Information disseminated by Federal agencies; quality, engines (marine and land-based); emissions control, objectivity, utility, and integrity guidelines, 21682 21613–21617 Air quality implementation plans; approval and promulgation; various States: Federal Deposit Insurance Corporation Utah, 21607–21612 NOTICES NOTICES Reports and guidance documents; availability, etc.: Agency information collection activities: Information disseminated by Federal agencies; quality, Proposed collection; comment request, 21668–21669 objectivity, utility, and integrity guidelines, 21682 Pesticide, food, and feed additive petitions: Interregional Research Project (No. 4), 21671–21679 Pesticide registration, cancellation, etc.: Federal Energy Regulatory Commission Dimethoate; correction, 21669 NOTICES Monsanto Co., 21669–21671 Electric rate and corporate regulation filings: Superfund; response and remedial actions, proposed Public Service Co. of New Mexico et al., 21650–21653 settlements, etc.: Southern California Edison Co. et al., 21653 Taylor Lumber & Treating Site, OR, 21680 TECO Power Services Corp. et al., 21653–21655 Superfund program: Hydroelectric applications, 21655–21657 Prospective purchaser agreements— Meetings: Gurley Pesticide Burial Site, NC, 21679–21680 Transmission providers; standards of conduct; staff Water pollution control: conference, 21657–21668 Total maximum daily loads— Applications, hearings, determinations, etc.: Mermentau and Vermilion/Teche river basins, LA; final Colorado Interstate Gas Co., 21647 agency action on 45 TMDLs, 21680–21681 Columbia Gulf Transmission Co., 21647–21648 Copper Eagle Gas Storage, L.L.C., 21648 Executive Office of the President Green Mountain Energy Co., 21648–21649 See Management and Budget Office Invenergy Energy Marketing LLC, 21649 See Presidential Documents San Diego Gas & Electric Co., 21649 See Trade Representative, Office of United States Texas Eastern Transmission, L.P., 21649 Vandolah Power Co., L.L.C., 21650 Farm Credit Administration Virginia Electric & Power Co., 21650 NOTICES Reports and guidance documents; availability, etc.: Information disseminated by Federal agencies; quality, Federal Highway Administration objectivity, utility, and integrity guidelines, 21681– NOTICES 21682 Grants and cooperative agreements; availability, etc.: Transportation Equity Act for 21st Century; Federal Aviation Administration implementation— RULES National Corridor Planning and Development Program Airworthiness directives: and Coordinated Border Infrastructure Program, Airbus, 21569–21572 21795–21796 Empresa Brasileira de Aeronautica S.A. (EMBRAER), 21567–21569, 21572–21575 Fairchild; correction, 21803 Federal Maritime Commission Class D and Class E2 and E5 airspace, 21575–21576 NOTICES NOTICES Agreements filed, etc., 21682–21683 Exemption petitions; summary and disposition; correction, Ocean transportation intermediary licenses: 21803 BCR Freight (USA) Inc. et al., 21683
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Federal Reserve System International Trade Administration NOTICES NOTICES Reports and guidance documents; availability, etc.: Antidumping: Information disseminated by Federal agencies; quality, Non-frozen apple juice concentrate from— objectivity, utility, and integrity guidelines, 21683– China, 21633–21634 21684 Steel concrete reinforcing bars from— Turkey, 21634–21638 Federal Trade Commission Structural steel beams from— NOTICES Korea, 21638 Reports and guidance documents; availability, etc.: Antidumping and countervailing duties: Information disseminated by Federal agencies; quality, Five-year (sunset) reviews— objectivity, utility, and integrity guidelines, 21684 Initiation of reviews, 21632–21633 Overseas trade mission: Fish and Wildlife Service Kuala Lumpur, Malaysia, et al.; Franchising Matchmaker NOTICES Trade Delegation et al., 21638–21639 Comprehensive conservation plans; availability, etc.: Crescent Lake National Wildlife Refuge, NE, 21711–21712 International Trade Commission Food and Drug Administration NOTICES NOTICES Agency information collection activities: Meetings: Submission for OMB review; comment request, 21730– Anesthetic and Life Support Drugs Advisory Committee, 21731 21706 Import investigations: Gas-turbo compressor systems from— Forest Service Japan, 21731–21733 NOTICES Ink jet print cartridges and components, 21733–21734 Environmental statements; notice of intent: Ouachita National Forest, AR and OK, 21621–21625 Justice Department Ozark-St. Francis National Forests, AR, 21625–21629 See National Institute of Corrections Health and Human Services Department See Centers for Disease Control and Prevention Labor Department See Centers for Medicare & Medicaid Services NOTICES See Children and Families Administration Grants and cooperative agreements; availability, etc.: See Food and Drug Administration Homeless Veterans’ Reintegration Program, 21736–21776 See Inspector General Office, Health and Human Services Reports and guidance documents; availability, etc.: Department Information disseminated by Federal agencies; quality, See National Institutes of Health objectivity, utility, and integrity guidelines, 21776– See Substance Abuse and Mental Health Services 21777 Administration NOTICES Reports and guidance documents; availability, etc.: Land Management Bureau Information disseminated by Federal agencies; quality, NOTICES objectivity, utility, and integrity guidelines, 21685 Agency information collection activities: Submission for OMB review; comment request, 21712– Housing and Urban Development Department 21713 NOTICES Environmental statements; notice of intent: Grants and cooperative agreements; availability, etc.: Imperial County, CA; United States Gypsum Plaster City Urban Scholars Fellowship Program, 21969–21974 wallboard manufacturing operations and Fish Creek Quarry operations, 21713–21714 Inspector General Office, Health and Human Services Realty actions; sales, leases, etc.: Department Alaska, 21714 RULES Arizona, 21714–21715 Medicare and Federal health care programs: Colorado, 21715–21716 Revisions and technical corrections Oregon, 21716–21717 Correction, 21579–21580 Utah, 21717–21718 Interior Department Management and Budget Office See Fish and Wildlife Service NOTICES See Land Management Bureau Reports and guidance documents; availability, etc.: See Minerals Management Service Information disseminated by Federal agencies; quality, See Surface Mining Reclamation and Enforcement Office objectivity, utility, and integrity guidelines, 21779 Internal Revenue Service NOTICES Merit Systems Protection Board Reports and guidance documents; availability, etc.: NOTICES Information disseminated by Federal agencies; quality, Reports and guidance documents; availability, etc.: objectivity, utility, and integrity guidelines, 21801– Information disseminated by Federal agencies; quality, 21802 objectivity, utility, and integrity guidelines, 21777
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Minerals Management Service PROPOSED RULES NOTICES Fishery conservation and management: Agency information collection activities: Magnuson-Stevens Act provisions— Proposed collection; comment request, 21718–21729 Domestic fishing; general provisions, 21618–21619 NOTICES Meetings: National Archives and Records Administration Magnuson-Stevens Act provisions— NOTICES Essential fish habitat Steering Committee, 21639–21640 Meetings: National Industrial Security Program Policy Advisory National Science Foundation Committee, 21777 NOTICES Meetings; Sunshine Act, 21777 National Highway Traffic Safety Administration Reports and guidance documents; availability, etc.: PROPOSED RULES Information disseminated by Federal agencies; quality, Motor vehicle safety standards: objectivity, utility, and integrity guidelines, 21778 Child restraint systems— Improved test dummies, new or revised injury criteria, Nuclear Regulatory Commission and extended child restraints standards, 21805– NOTICES 21836 Applications, hearings, determinations, etc.: Side and rear impact safety protection requirements, Molycorp, Inc., 21778–21779 21835–21852 NOTICES Motor vehicle safety standards: Office of Management and Budget Nonconforming vehicles— See Management and Budget Office Importation eligibility; determinations, 21796–21798 Motor vehicle safety standards; exemption petitions, etc.: Office of United States Trade Representative Evenflo Co., Inc., 21798–21799 See Trade Representative, Office of United States
National Institute of Corrections Overseas Private Investment Corporation NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Meetings; Sunshine Act, 21779 Correctional Management of Offenders in Community, 21734–21736 Pension Benefit Guaranty Corporation NOTICES National Institutes of Health Reports and guidance documents; availability, etc.: NOTICES Information disseminated by Federal agencies; quality, Meetings: objectivity, utility, and integrity guidelines, 21779– National Cancer Institute, 21706–21707 21780 National Institute of Child Health and Human Development, 21708 Personnel Management Office National Institute of Diabetes and Digestive and Kidney NOTICES Diseases, 21707 Meetings: National Institute of General Medical Sciences, 21708– Federal Prevailing Rate Advisory Committee, 21780 21709 National Institute of Mental Health, 21707 Postal Service National Institute on Alcohol Abuse and Alcoholism, NOTICES 21707–21708 Postage meters: Scientific Review Center, 21709 Postage evidencing product submission procedures, 21780–21785 National Oceanic and Atmospheric Administration RULES Presidential Documents Endangered and threatened species: PROCLAMATIONS Sea turtle conservation— Special observances: Leatherback turtle conservation zone; shrimp trawling National Day of Prayer (Proc. 7547), 21559–21560 activities; restrictions, 21585–21586 Steelhead in southern California; range extension, 21586– Public Health Service 21598 See Centers for Disease Control and Prevention Fishery conservation and management: See Food and Drug Administration Alaska; fisheries of Exclusive Economic Zone— See National Institutes of Health Bering Sea and Aleutian Islands groundfish and Gulf of See Substance Abuse and Mental Health Services Alaska groundfish; Steller sea lion protection Administration measures; amendment and correction, 21600– 21606 Research and Special Programs Administration Caribbean, Gulf of Mexico, and South Atlantic fisheries— NOTICES U.S. Caribbean fishery management plans; Hazardous materials: Comprehensive Fishery Act Amendment, 21598– Applications; exemptions, renewals, etc.; correction, 21599 21803–21804
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Securities and Exchange Commission See Research and Special Programs Administration NOTICES See Surface Transportation Board Reports and guidance documents; availability, etc.: See Transportation Security Administration Information disseminated by Federal agencies; quality, objectivity, utility, and integrity guidelines, 21785 Transportation Security Administration Self-regulatory organizations; proposed rule changes: RULES Chicago Board Options Exchange, Inc., 21785–21787 Aviation security infrastructure fees, 21582–21585 Chicago Stock Exchange, Inc., 21787–21788 International Securities Exchange, LLC, 21788–21789 Treasury Department National Association of Securities Dealers, Inc., 21789– See Customs Service 21794 See Internal Revenue Service
State Department NOTICES Separate Parts In This Issue Reports and guidance documents; availability, etc.: Information disseminated by Federal agencies; quality, Part II objectivity, utility, and integrity guidelines, 21794 Transportation Department, National Highway Traffic Safety Administration, 21805–21852 Substance Abuse and Mental Health Services Administration Part III NOTICES Agriculture Department, Agricultural Marketing Service, Federal agency urine drug testing; certified laboratories 21853–21866 meeting minimum standards, list, 21709–21711 Grants and cooperative agreements; availability, etc.: Part IV Older adults; meeting mental health services needs; Environmental Protection Agency, 21867–21901 correction, 21711 Part V Surface Mining Reclamation and Enforcement Office Interior Department, Surface Mining Reclamation and RULES Enforcement Office, 21903–21932 Permanent program and abandoned mine land reclamation plan submissions: Part VI West Virginia, 21903–21932 Agriculture Department, Animal and Plant Health NOTICES Agency information collection activities: Inspection Service, 21933–21959 Proposed collection; comment request, 21729–21730 Part VII Surface Transportation Board Commerce Department, Census Bureau, 21961–21967 NOTICES Railroad operation, acquisition, construction, etc.: Part VIII Union Pacific Railroad Co., 21799–21800 Housing and Urban Development Department, 21969–21974
Trade Representative, Office of United States NOTICES Reader Aids African Growth and Opportunity Act; implementation: Consult the Reader Aids section at the end of this issue for Senegal; benefits eligibility determination, 21794–21795 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Transportation Department To subscribe to the Federal Register Table of Contents See Coast Guard LISTSERV electronic mailing list, go to http:// See Federal Aviation Administration listserv.access.gpo.gov and select Online mailing list See Federal Highway Administration archives, FEDREGTOC-L, Join or leave the list (or change See National Highway Traffic Safety Administration settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 7547...... 21559 7 CFR 301...... 21561 Proposed Rules: 929...... 21854 9 CFR Proposed Rules: 53...... 21934 10 CFR 430...... 21566 14 CFR 39 (4 documents) ...... 21567, 21569, 21572, 21803 71...... 21575 30 CFR 948...... 21904 33 CFR 165...... 21576 40 CFR 51...... 21868 52...... 21868 63...... 21579 96...... 21868 97...... 21868 Proposed Rules: 52...... 21607 63...... 21612 89...... 21613 90...... 21613 91...... 21613 94...... 21613 1048...... 21613 1051...... 21613 1065...... 21613 1068...... 21613 42 CFR 1001...... 21579 Proposed Rules: 414...... 21617 47 CFR 63...... 21803 73 (4 documents) ...... 21580, 21581, 21582 Proposed Rules: 73...... 21618 49 CFR 1511...... 21582 Proposed Rules: 571...... 21806 50 CFR 222...... 21585 223...... 21585 224...... 21586 622...... 21598 679...... 21600 Proposed Rules: 600...... 21618
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Federal Register Presidential Documents Vol. 67, No. 84
Wednesday, May 1, 2002
Title 3— Proclamation 7547 of April 26, 2002
The President National Day of Prayer, 2002
By the President of the United States of America
A Proclamation
Since our Nation’s founding, Americans have turned to prayer for inspiration, strength, and guidance. In times of trial, we ask God for wisdom, courage, direction, and comfort. We offer thanks for the countless blessings God has provided. And we thank God for sanctifying every human life by creating each of us in His image. As we observe this National Day of Prayer, we call upon the Almighty to continue to bless America and her people. Especially since September 11, millions of Americans have been led to prayer. They have prayed for comfort in a time of grief, for understanding in a time of anger, and for protection in a time of uncertainty. We have all seen God’s great faithfulness to our country. America’s enemies sought to weaken and destroy us through acts of terror. None of us would ever wish on anyone what happened on September 11th. Yet tragedy and sorrow none of us would choose have brought forth wisdom, courage, and generosity. In the face of terrorist attacks, prayer provided Americans with hope and strength for the journey ahead. God has blessed our Nation beyond measure. We give thanks for our families and loved ones, for the abundance of our land and the fruits of labor, for our inalienable rights and liberties, and for a great Nation that leads the world in efforts to preserve those rights and liberties. We give thanks for all those across the world who have joined with America in the fight against terrorism. We give thanks for the men and women of our military, who are fighting to defend our Nation and the future of civilization. We continue to remember those who are suffering and face hardships. We pray for peace throughout the world. On this National Day of Prayer, I encourage Americans to remember the words of St. Paul: ‘‘Do not be anxious about anything, but in everything, by prayer and petition, with thanksgiving, present your requests to God.’’ The Congress, by Public Law 100–307, as amended, has called on our citizens to reaffirm the role of prayer in our society and to honor the religious diversity our freedom permits by recognizing annually a ‘‘National Day of Prayer.’’ NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim May 2, 2002, as a National Day of Prayer. I ask Americans to pray for God’s protection, to express gratitude for our blessings, and to seek moral and spiritual renewal. I urge all our citizens to join in observing this day with appropriate programs, ceremonies, and activities.
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IN WITNESS WHEREOF, I have hereunto set my hand this twenty-sixth day of April, in the year of our Lord two thousand two, and of the Independ- ence of the United States of America the two hundred and twenty-sixth. W
[FR Doc. 02–10959 Filed 4–30–02; 8:45 am] Billing code 3195–01–P
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Rules and Regulations Federal Register Vol. 67, No. 84
Wednesday, May 1, 2002
This section of the FEDERAL REGISTER files. Please include your name and expenses because of Karnal bunt during contains regulatory documents having general address in your message and ‘‘Docket certain years. These provisions are in applicability and legal effect, most of which No. 01–112–1’’ on the subject line. § 301.89–15, ‘‘Compensation for are keyed to and codified in the Code of You may read any comments that we growers, handlers, and seed companies Federal Regulations, which is published under receive on this docket in our reading in the 1999–2000 and subsequent crop 50 titles pursuant to 44 U.S.C. 1510. room. The reading room is located in seasons,’’ and § 301.89–16, The Code of Federal Regulations is sold by room 1141 of the USDA South Building, ‘‘Compensation for grain storage the Superintendent of Documents. Prices of 14th Street and Independence Avenue, facilities, flour millers, and National new books are listed in the first FEDERAL SW., Washington, DC. Normal reading Survey participants for the 1999–2000 REGISTER issue of each week. room hours are 8 a.m. to 4:30 p.m., and subsequent crop seasons.’’ Monday through Friday, except On August 6, 2001, the Animal and holidays. To be sure someone is there to Plant Health Inspection Service (APHIS) DEPARTMENT OF AGRICULTURE help you, please call (202) 690–2817 published in the Federal Register a final before coming. rule (66 FR 40839–40843, Docket No. Animal and Plant Health Inspection APHIS documents published in the 96–016–37) that established the Service Federal Register, and related compensation levels for the 1999–2000 information, including the names of growing season and subsequent years 7 CFR Part 301 organizations and individuals who have and made several other changes to the [Docket No. 01–112–1] commented on APHIS dockets, are compensation regulations. One of these available on the Internet at http:// changes was that, after the 2000–2001 RIN 0579–AB45 www.aphis.usda.gov/ppd/rad/ growing season, compensation would webrepor.html. Karnal Bunt Compensation no longer be made available to persons FOR FURTHER INFORMATION CONTACT: Mr. growing or handling crops that were AGENCY: Animal and Plant Health Robert G. Spaide, Director for knowingly planted in previously Inspection Service, USDA. Surveillance and Emergency Programs regulated areas. ACTION: Interim rule and request for Planning and Coordination, PPQ, We have recently identified and comments. APHIS, 4700 River Road Unit 98, analyzed five situations where certain Riverdale, MD 20737–1231; (301) 734– wheat growers, handlers, and other SUMMARY: We are amending the Karnal 7819. parties covered by the compensation bunt regulations to provide SUPPLEMENTARY INFORMATION: regulations appear to be ineligible to compensation for certain growers and receive compensation for grain or seed handlers of grain and seed affected by Background affected by Karnal bunt due to Karnal bunt who are not currently Karnal bunt is a fungal disease of restrictive language used in the eligible for compensation, and for wheat (Triticum aestivum), durum regulations that did not anticipate certain wheat grown outside the wheat (Triticum durum), and triticale certain complications in the harvest and regulated area that was commingled (Triticum aestivum X Secale cereale), a storage of grain that arose following with wheat grown in regulated areas in hybrid of wheat and rye. Karnal bunt is discovery of Karnal bunt in four Texas. The payment of compensation is caused by the smut fungus Tilletia counties in northern Texas. The necessary in order to encourage the indica (Mitra) Mundkur and is spread situations we are addressing primarily participation of, and obtain cooperation by spores, primarily through the affect growers and handlers in Texas, from, affected individuals in our efforts movement of infected seed. In the and certain handlers who moved grain to contain and reduce the prevalence of absence of measures taken by the U.S. from other States to Texas for storage. In Karnal bunt. Department of Agriculture (USDA) to particular, four counties in northern DATES: This interim rule is effective May prevent its spread, the establishment of Texas became regulated areas during the 1, 2002. We will consider all comments Karnal bunt in the United States could latter part of the 2000–2001 growing we receive that are postmarked, have significant consequences with season, and due to the need to quicky delivered, or e-mailed by July 1, 2002. regard to the export of wheat to declare these counties as regulated ADDRESSES: You may submit comments international markets. The regulations areas, we were unable to modify the by postal mail/commercial delivery or regarding Karnal bunt are set forth in 7 compensation regulations at that time to by e-mail. If you use postal mail/ CFR 301.89–1 through 301.89–16 address certain relevant aspects of the commercial delivery, please send four (referred to below as the regulations). way seed and grain are moved, stored, copies of your comment (an original and Among other things, the regulations and used in the newly regulated areas. three copies) to: Docket No. 01–112–1, define areas regulated for Karnal bunt We are now revising the compensation Regulatory Analysis and Development, and restrict the movement of certain regulations to address five particular PPD, APHIS, Station 3C71, 4700 River regulated articles, including wheat seed situations in Texas regulated areas. Road Unit 118, Riverdale, MD 20737– and grain, from the regulated areas. The These cases represent unanticipated 1238. Please state that your comment regulations also provide for the payment circumstances applicable only to the refers to Docket No. 01–112–1. If you of compensation for certain growers, 2000–2001 growing season where we use e-mail, address your comment to handlers, seed companies, owners of believe the parties affected should, in [email protected]. Your grain storage facilities, flour millers, and fairness, be eligible for compensation. comment must be contained in the body participants in the National Karnal Bunt We are revising the compensation of your message; do not send attached Survey who incurred losses and regulations to allow persons included in
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these five situations to apply for seed and seed being grown as certified the 2000-2001 growing season. This compensation. The situations covered seed. This provision does not address treated seed cannot be used for by these regulatory changes are compensation in situations where a consumption by humans or animals; it described below. producer holds back grain from sale in must be disposed of in an approved order to use it as seed the next season. Compensation for Certain Karnal Bunt manner, such as burying in a landfill or This practice of holding back grain for Negative Wheat on-farm disposal. use as seed is common in regulated We are adding a paragraph to provide In 2001, we have added four counties areas of Texas but is rare in other in Texas (Archer, Baylor, Throckmorton, regulated States. The regulations do not compensation for the disposal costs for and Young Counties) to the list of address losses associated with the treated uncertified wheat seed. This Karnal bunt regulated areas (66 FR inability of producers to use held-back compensation for disposal costs is in 32209–32210, Docket No. 01–058–1, grain as seed for planting the next year’s addition to the payments discussed in June 14, 2001, and 66 FR 37575–37576, crop if Karnal bunt spores are detected the previous section regarding Docket No. 01–063–1, July 19, 2001). in that grain. Because they cannot use compensation for replacing uncertified Approximately 7.4 million bushels of spore-positive held-back grain as seed seed. The cost to bury wheat seed, negative-tested wheat from the four for planting, growers must purchase whether on the producer’s premises or counties added in 2001 are currently replacement seed to plant next year’s at a landfill, is about $1.00 per bushel. stored in grain elevators. crop. In addition, there are transportation Even though this wheat is Karnal bunt Growers who hold back wheat in costs involved in moving seed to a negative, it cannot be exported to major order to use it as seed only to find that landfill, which average about $0.20 per markets as it normally would be, it contains Karnal bunt spores may be bushel. Therefore, we are adding new because it was tested after harvest at the able to sell that wheat as grain, but the paragraph § 301.89–15(e) to read as elevator, not in the field. Major foreign cost of replacement seed will exceed the follows: ‘‘(e) Special allowance for importers will accept U.S. wheat only if income generated from the sale of the disposal costs for treated uncertified it can be certified as coming from an seed as grain. Approximately 176 wheat seed in Archer, Baylor, area where Karnal bunt is not known to growers, and 483,000 bushels of Throckmorton, and Young Counties, exist. Such certification is currently uncertified seed, are affected by this TX, in the 2000–2001 growing season. based on testing at the field level. situation. The growers involved will For this reason, when a producer near Notwithstanding any other provision of incur losses between $2 and $3 per this section, growers in Archer, Baylor, an area affected by Karnal bunt knows bushel. As an incentive for program Throckmorton, or Young Counties, TX, his wheat is destined for export, he participation, we intend to partially who own treated uncertified wheat seed generally arranges to have his fields mitigate this loss by changing the tested for Karnal bunt. However, in regulations to make producers in this that tested positive for Karnal bunt northern Texas this past crop season, situation eligible for compensation for spores during the 2000–2001 growing most wheat had already been harvested held-back grain intended for use as seed season are eligible for compensation in when Karnal bunt was discovered in the that is determined to be Karnal bunt accordance with this paragraph. The four counties subsequently added as spore-positive. The current grower is eligible for compensation for regulated areas, so that wheat could compensation cap on both grain and the costs of disposing of such wheat only be tested in bins. The result is that seed is $1.80 per bushel in an area seed, by burial on the grower’s approximately 7.4 million bushels of under the first regulated crop season premises, by burial at a landfill, or this wheat are still in storage, cannot be and $0.60 per bushel in previously through another means approved by exported, must move under limited regulated areas, regardless of the actual APHIS. The compensation for disposing permit, and are currently ineligible for loss. of wheat seed by burial on the grower’s compensation under the regulations. To accomplish this change, we are premises is $1.00 per bushel. The We are making this wheat eligible for changing the last sentence of the compensation for disposing of wheat compensation payments by adding a introductory text of § 301.89–15(a) to seed by burial at a landfill, or through new paragraph (d) to § 301.89–15, read ‘‘The compensation provided in another means approved by APHIS, is ‘‘Compensation for growers, handlers, this section is for wheat grain, certified the actual cost of disposal, up to $1.20 and seed companies in the 1999–2000 wheat seed, wheat held back from per bushel, as verified by receipts for and subsequent crop seasons.’’ This new harvest by a grower in the 2000–2001 disposal costs. To apply for this paragraph reads as follows: ‘‘(d) Special growing season for use as seed in the compensation, the grower must submit allowance for negative wheat grown in next growing season, and wheat grown a Karnal Bunt Compensation Claim Archer, Baylor, Throckmorton, and with the intention of producing certified form, provided by the Farm Service Young Counties, TX, in the 2000–2001 wheat seed.’’ Agency, and must also submit a copy of growing season. Notwithstanding any Compensation for the Cost of Disposing the Karnal bunt certificate issued by other provision of this section, wheat of Uncertified Treated Seed APHIS that shows the Karnal bunt test that was harvested from fields in results, and verification as to the actual Archer, Baylor, Throckmorton, or Young Another case where the regulations in (not estimated) weight of the uncertified Counties, TX, in the 2000-2001 growing effect prior to this rule did not provide season, and that tested negative for compensation applies to the owners of wheat seed that tested positive for Karnal bunt after harvest, is eligible for uncertified Karnal bunt spore-positive spores (such as a copy of a facility compensation in accordance with seed that has been treated with weigh ticket, or other verification). For paragraph (a) of this section.’’ fungicides or other chemicals, and thus seed disposed of by burial at a landfill, cannot be sold as grain. The regulations the grower must also submit one or Compensation for the Cost of Replacing did not allow compensation for more receipts for the disposal costs of Uncertified Seed uncertified seed, or provide any the uncertified wheat seed, showing the With regard to seed, the regulations in reimbursement for disposal costs. An total bushels destroyed and the total effect prior to this rule limit estimated 56,000 bushels of uncertified disposal costs (landfill fees, compensation payments to certified treated seed tested positive for spores in transportation costs, etc.).’’
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Compensation for Affected Wheat was announced in the August 6, 2001, areas.’’ As amended, that sentence Grown Outside of Regulated Areas final rule, growers in northern Texas reads: ‘‘Growers, handlers, and seed Approximately 2.8 million bushels of were faced with a situation where they companies in previously regulated areas wheat stored in bins in Texas is had incomplete knowledge upon which will not be eligible for compensation for considered Karnal bunt positive; some to base their business decisions for the wheat from the 2001–2002 and of this wheat was grown in regulated next growing season. Karnal bunt was subsequent crop seasons; except that, areas and an unknown amount was discovered in northern Texas well into for growers or handlers of wheat grown by Texas producers located the 2000–2001 growing season, reducing harvested in any field in the Texas outside the regulated area and by the time growers had to plan for the counties of Archer, Baylor, next season. While APHIS had declared Throckmorton, and Young during the producers located in Oklahoma. four entire counties as regulated areas, 2000–2001 crop season that has not Because of commingling, all 2.8 million there had been only limited testing of been found to contain a bunted wheat bushels—including that wheat grown certain fields in those counties (about kernel, this requirement applies to outside of the regulated area—is 150 fields were tested before the final compensation for wheat from the 2002– considered positive. The regulations rule), and growers knew that the 2003 and subsequent crop seasons.’’ provide that to be eligible for regulated area might be either reduced compensation, the wheat must be grown Deadline for Submission of Claims to less than the entire counties, or in a State where the Secretary has conversely expanded to include fields As discussed previously, this rule declared an extraordinary emergency in adjacent counties, depending on extends existing compensation and must meet certain other criteria. future test results. Therefore, growers provisions to cover certain additional Therefore, prior to this rule, could not make fully informed business growers, handlers, and owners of grain compensation could be paid for that decisions on whether it was prudent to storage facilities to mitigate losses and portion of the 2.8 million bushels that plant wheat in the four regulated expenses incurred in the 2000–2001 was grown in Texas, but the wheat counties, or adjacent areas, in the 2001– crop season because of the Karnal bunt grown in Oklahoma was not eligible for 2002 growing season. The discovery of quarantine and emergency actions. The compensation, because the Secretary Karnal bunt in these counties also came regulations in § 301.89–15(c) provide has not declared an extraordinary at the same time growers were making that compensation payments to growers, emergency in that State. commitments for field usage, seed, and handlers, and seed companies will be To address this, we are adding a new equipment for the next growing season, issued by the Farm Service Agency sentence to § 301.89–15(a), the and some growers had already (FSA), and that claims for compensation paragraph that describes eligibility for committed to growing wheat the must be received by FSA on or before compensation of growers and handlers. following year in what became a March 1 of the year following the crop The new sentence reads ‘‘Growers and regulated area. Finally, the weather and season during which the losses handlers of wheat grown in Oklahoma moisture conditions in this part of occurred. Thus, claims for during the 2000–2001 growing season northern Texas make it unlikely that compensation for the 2000–2001 crop are eligible to receive compensation if growers could successfully substitute season were due on March 1, 2002. The the wheat was commingled in storage another crop for wheat in the regulated regulations in § 301.89–15(c) also with wheat that meets the above areas. provide that the Administrator may requirements of this paragraph.’’ This For these reasons, growers in the four extend the deadline, upon request in change allows compensation to be paid northern Texas counties have sought 1- specific cases, when unusual and to Oklahoma growers and handlers year deferral of the regulatory unforeseen circumstances occur that whose wheat has been commingled in requirement that growers who prevent or hinder a claimant from Texas with Texas-grown Karnal bunt knowingly plant wheat in previously requesting compensation on or before positive wheat during storage. The regulated areas are not eligible for these dates. Given that the effective date Oklahoma growers and handlers will compensation. We agree that to enforce of this rule falls after the March 1, 2002, receive the same compensation as the the requirement in this case would deadline cited above, we are extending, Texas growers; i.e., payments of up to represent an unanticipated and for a period of 90 days from the effective $1.80 per bushel. unintended hardship on growers in the date of this rule, the 2000–2001 crop Eligibility for Compensation in the Texas counties of Archer, Baylor, season claims deadline to provide for 2001–2002 Crop Season Throckmorton, and Young, and are the submission of claims for the changing the regulations to make this compensation provided for by this The regulations state that, beginning provision take effect, with regard only to interim rule. Such claims must be with the 2001–2002 crop season, only those counties, beginning with the received by FSA on or before July 30, growers who knowingly plant wheat in 2002–2003 crop season instead of the 2002. previously regulated areas are not 2001–2002 crop season. This deferral Emergency Action eligible for compensation. We included does not apply to the 27 fields in this requirement based on our belief that northern Texas that were discovered to This rulemaking is necessary on an the regulations should not provide be infected (i.e., to contain one or more emergency basis to eliminate the risk ‘‘insurance’’ for growers who knowingly bunted kernels) in the course of Karnal presented by maintaining large stores of take the risk of planting in an area bunt surveys in 2001, as owners of these Karnal bunt-positive wheat, which where their wheat crop faces an fields had timely notice of the survey cannot be destroyed until its eligibility increased risk of testing positive for results and had a reasonable for indemnity is clarified. The Karnal bunt. Growers who are aware opportunity to change their planting indemnity payments authorized by this that previously regulated areas present a plans for the next season. rule are also necessary in order to greater risk of contaminating their crop To accomplish this change, we are reduce the economic effect of the Karnal with Karnal bunt can choose to alter adding an exception to the second-to- bunt regulations on affected wheat their planting or contracting decisions last sentence of the introductory text of growers and other individuals and to to avoid experiencing losses due to § 301.89–15(b), ‘‘Growers, handlers, and help obtain cooperation from affected Karnal bunt. However, when this policy seed companies in previously regulated individuals in our efforts to contain and
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reduce the prevalence of Karnal bunt. allows compensation for losses compensation available for such losses Under these circumstances, the associated with certain negative wheat, on a one crop season-only basis, i.e., for Administrator has determined that prior i.e., elevator-tested-negative wheat grain grown in the 2000–2001 crop notice and opportunity for public harvested in the 2000–2001 crop season season intended for use in planting the comment are contrary to the public in northern Texas. The level of 2001–2002 season’s crop. The level of interest and that there is good cause compensation offered is the same as that compensation offered is the same as that under 5 U.S.C. 553 for making this rule currently being offered for positive- currently being offered for positive- effective less than 30 days after testing grain and certified seed in first testing grain and certified seed in the publication in the Federal Register. regulated areas, i.e., up to $1.80/bushel. 2000–2001 crop season, i.e., up to We will consider comments we The four-county regulated area in $1.80/bushel in first regulated areas and receive during the comment period for northern Texas became a regulated area $0.60/bushel in previously regulated this interim rule (see DATES above). in the 2000–2001 crop season. areas. After the comment period closes, we Approximately 7.4 million bushels of will publish another document in the negative-tested wheat from the four- Growers in Texas normally hold back Federal Register. The document will county regulated area in northern Texas a quantity of grain for use as seed in the include a discussion of any comments is currently stored in grain elevators. next planting season. During the 2000– we receive and any amendments we are Even though it is Karnal bunt-negative, 2001 crop season, approximately making to the rule as a result of the this wheat cannot be exported to major 483,000 bushels of this seed (457,000 comments. markets as it normally would be because bushels in the four northern Texas it was tested after harvest at the counties and 26,000 bushels in San Saba Executive Order 12866 and Regulatory elevator, not in the field. (Major foreign County, Texas) tested negative for Flexibility Act importers will accept U.S. wheat only if bunted kernels but positive for spores, This rule has been reviewed under it can be certified as coming from an which means that it can be used for Executive Order 12866. The rule has area where Karnal bunt is not known to grain but not seed. Growers, therefore, been determined to be significant for the exist. Such certification is currently will have to purchase replacement seed. purposes of Executive Order 12866 and, based on testing at the field level.) In However, the cost of replacement seed therefore, has been reviewed by the northern Texas this past crop season, will exceed the income generated from Office of Management and Budget. most wheat had already been harvested the sale of the seed as grain, meaning This rule extends existing when Karnal bunt was discovered, so it that growers involved will incur losses. compensation provisions to cover could only be tested in bins. The glut on Grower losses, before any compensation certain additional growers, handlers, the local domestic market created by the from USDA, are estimated to range and owners of grain storage facilities to absence of an export outlet, and the between $2 and $3/bushel. mitigate losses and expenses incurred in reluctance of some mills to accept Total compensation is estimated at the 2000–2001 crop season because of ‘‘tainted’’ wheat that may move only $838,200; i.e., $822,600 for the 457,000 the Karnal bunt quarantine and under a limited permit, have severely bushels in the four newly regulated emergency actions. The affected parties limited the market for this negative northern Texas counties (457,000 × are primarily growers and handlers in wheat, resulting in a loss in its value. $1.80), and $15,600 for the 26,000 four northern Texas. The loss in value of the negative grain is estimated at about $0.35/bushel. bushels in previously regulated San Below is an economic analysis for this × interim rule. The economic analysis Based on this per bushel loss estimate, Saba County (26,000 $0.60). Since provides a cost-benefit analysis as compensation will total about $2.6 grower losses are expected to range required by Executive Order 12866 and million for all 7.4 million bushels of between $2 and $3/bushel, growers and an analysis of the potential economic grain. handlers qualify for compensation at the effects on small entities as required by It is estimated that approximately 20 maximum levels offered. Approximately the Regulatory Flexibility Act. to 30 handlers will be affected by this 176 growers will be affected by this The following economic analysis rule, including two handlers who, aspect of the rule. indicates that the cost of the rule would together, account for 70 percent of the 7.4 million affected bushels. Compensation for the Cost of Disposing be about $4.8 million. It would be of Certain Uncertified Treated Seed necessary to obtain these funds from the Compensation for the Cost of Replacing Commodity Credit Corporation. Benefits Certain Uncertified Seed Prior to this rule, there was no cannot be monetized with accuracy, but compensation for the cost of disposing would include averting future wheat Prior to this rule, the regulations limited compensation payments to of uncertified treated seed that tests crop losses that would occur without positive for spores or bunted kernels. the improved producer participation certified seed and seed being grown as certified seed, and did not address This rule allows for such compensation this rule is expected to achieve. on a one crop season-only basis, i.e., for Benefits would also include greater losses associated with the inability of growers to use held-back grain that is seed grown in the 2000–2001 crop likelihood of grower cooperation in season. This compensation for disposal Karnal bunt testing requirements and found to be spore-positive for planting the next year’s crop. This rule makes costs is in addition to the payments participation in the National Karnal discussed in the previous paragraphs Bunt Survey. and thus generally no costs or losses imposed on regarding compensation for replacing Compensation for Certain Karnal Bunt- its owners. However, there is precedent for paying uncertified seed. The level of Negative Wheat compensation for negative wheat when its value is compensation offered for the cost of affected by movement restrictions applied to disposing of uncertified treated seed Prior to this rule, the regulations did positive wheat. In the 1995–1996 crop season, when that tests positive for spores or bunted not allow for compensation for any Karnal bunt was first discovered in Arizona, compensation was paid for the loss in value of kernels is $1.00/bushel, or up to $1.20/ Karnal bunt-negative wheat. 1 This rule negative-testing wheat, due to regulatory bushel, depending on whether the seed restrictions that existed at that time, which is disposed of in a landfill or on-farm. 1 This is because there are no regulatory included a requirement that the negative-testing restrictions on the movement of negative wheat, wheat could be moved only under a limited permit. The former is for on-farm disposal, the
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latter for landfill disposal.2 The landfill of compensation offered will be the Karnal bunt program in other areas, disposal cost of $1.00/bushel is based same as that currently being offered for there is no reason to believe that next on a telephone survey of regional positive-testing grain and certified seed year’s compensation costs will be higher landfills conducted by the APHIS Texas in first regulated areas, i.e., up to $1.80/ than this year’s total. If 43 percent of the area office. bushel. 5 million bushels expected to be As indicated above, approximately Approximately 2.8 million bushels of produced in the four-county regulated 457,000 bushels of uncertified seed Karnal bunt-positive wheat is stored in area during 2000–2001 turn up positive, grown in the four northern Texas bins in Texas, including a relatively the compensation would total counties in the 2000–2001 crop season small amount (no more than 25,000 $1,290,000 (2,150,00 bushels × $0.60). tested positive for spores. Of that total, bushels) of wheat grown by producers The infection rate of 43 percent is an about 38,000 bushels were treated with located in Oklahoma. (Because of average of last year’s infection rate in fungicides prior to testing, which means commingling, all of the grain— Arizona’s largest production area and in that it cannot be used for consumption including that grown outside the San Saba County, TX. This aspect of the by humans or animals; it must be regulated area is considered positive.) rule will affect approximately 400 to disposed of in an approved manner, e.g., The one handler who owns all of the 450 growers in northern Texas. burying it in a landfill or disposing of Oklahoma-grown wheat has incurred The Regulatory Flexibility Act it on-farm. Such disposal requirements losses, because it was purchased from requires that agencies consider the impose additional costs on growers. the Oklahoma producers at the price for economic impact of rules on small In addition, about 18,000 bushels of Karnal bunt-negative wheat but can now businesses, organizations, and uncertified seed grown in the four be sold only at the much lower price for governmental jurisdictions. Growers northern Texas counties in the 2000– positive wheat. Prior to this rule, the and handlers of wheat grain and seed 2001 crop season tested positive for regulations provided that, for handlers are those most affected by this rule. It bunted kernels. These 18,000 bushels, and others to be eligible for is estimated that there are a total of 420 because they were treated with compensation, the wheat must have to 480 wheat growers and handlers fungicides prior to testing, must also be been grown in a State where the potentially affected by this rule, most of disposed of in an approved manner. Secretary has declared an extraordinary whom are located in the four northern For all 56,000 bushels, compensation emergency and meet certain other Texas counties of Archer, Baylor, is estimated to total $66,080. This criteria. Thus, compensation was Throckmorton, and Young. Most of compensation estimate assumes that available for that portion of the 2.8 these entities have total annual sales of 50,400 bushels, or 90 percent of the total million bushels that was grown in less than $750,000, the Small Business affected bushels, will be disposed of in Texas, but the wheat grown in Administration’s threshold for a landfill at a cost of $1.20/bushel, and Oklahoma, because the Secretary has classifying wheat producers as small that the remainder (5,600 bushels) will not declared an extraordinary entities. Accordingly, most economic be disposed of on-farm at a cost of emergency in that State, was not eligible impacts of this rule will be on small $1.00/bushel.3 Approximately 15 to 20 for compensation. entities. growers will be affected by this change. Compensation is estimated to total no This rule is expected to have a more than $45,000 (25,000 bushels x positive economic impact on all affected Compensation for Handlers With $1.80). One handler will be affected by entities, large and small. Although most Positive Wheat Grown Outside the this aspect of the rule. of the affected entities are small in size, Regulated Area Eligibility for Compensation in 2001– the bulk of this rule’s benefits, in dollar Prior to this rule, handlers in Texas 2002 Crop Season terms, are likely to accrue to two large were not eligible for compensation for handlers. Compensation for Karnal losses associated with any wheat grown The regulations in effect prior to this bunt-related losses and expenses serves outside the regulated area that was interim rule stated that, effective with to encourage compliance with testing declared positive because it was the 2001–2002 crop season, growers requirements within the regulated areas, commingled in storage with positive who knowingly plant wheat in thereby aiding in the preservation of an wheat grown in the regulated areas. This previously regulated areas are not important wheat growing region in the rule offers such compensation. The level eligible for compensation. This rule United States. It also serves to defers, for 1 year, the effective date of encourage participation in the National 2 For landfill disposal, the maximum level of that ineligibility provision with regard Karnal Bunt Survey program. compensation (i.e., $1.20/bushel) is derived based to the four-county regulated area in Under these circumstances, the on the estimated cost to buy wheat seed at a landfill northern Texas (excluding areas in or Administrator of the Animal and Plant ($1.00/bushel) and the estimated cost to transport near one of the 27 known infected the seed to the landfill ($0.20/bushel). Although on- Health Inspection Service has farm disposal eliminates the need to transport the fields). determined that this action will not seed to the landfill, that disposal method still Growers in northern Texas have have a significant economic impact on involves additional costs for growers. For these argued that, because of limited testing, a substantial number of small entities. purposes, it is assumed that the cost of on-farm they and USDA have limited knowledge disposal and the estimated cost of landfill disposal about the status of fields in the Executive Order 12372 (excluding transportation costs) are the same. If on- farm disposal costs do exceed $1.00/bushel, regulated area and the risk of infection This program/activity is listed in the growers always have the option of landfill disposal. next year. The growers requested the 1- Catalog of Federal Domestic Assistance The transportation cost of $0.20/bushel is the year deferral to allow for the completion under No. 10.025 and is subject to approximate cost to transport one bushel of wheat of next year’s delimiting survey. from the four county regulated area in northern Executive Order 12372, which requires Texas to the landfill site, near Wichita Falls, Texas. The estimated amount of intergovernmental consultation with In January 2002, the Texas Department of Natural compensation that will result from the State and local officials. (See 7 CFR part Resources began accepting applications for permits 1-year deferral for growers in the four- 3015, subpart V.) to dispose of the seed at the landfill site. county regulated area in northern Texas 3 For several reasons, including the fact that many Executive Order 12988 growers lease rather than own their land, on-farm is unknown, because future infection disposals are assumed to be much fewer in number rates are unknown. However, based on This rule has been reviewed under than landfill disposals. operational experience conducting the Executive Order 12988, Civil Justice
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Reform. This rule: (1) Preempts all State back from harvest by a grower in the also submit a copy of the Karnal bunt and local laws and regulations that are 2000–2001 growing season for use as certificate issued by APHIS that shows inconsistent with this rule; (2) has no seed in the next growing season, and the Karnal bunt test results, and retroactive effect; and (3) does not wheat grown with the intention of verification as to the actual (not require administrative proceedings producing certified wheat seed. estimated) weight of the uncertified before parties may file suit in court * * * * * wheat seed that tested positive for challenging this rule. (b) * * * Growers, handlers, and seed spores (such as a copy of a facility weigh ticket, or other verification). For Paperwork Reduction Act companies in previously regulated areas will not be eligible for compensation for seed disposed of by burial at a landfill This interim rule contains no new wheat from the 2001–2002 and the grower must also submit one or information collection or recordkeeping subsequent crop seasons; except that, more receipts for the disposal costs of requirements under the Paperwork for growers or handlers of wheat the uncertified wheat seed, showing the Reduction Act of 1995 (44 U.S.C. 3501 harvested in any field in the Texas total bushels destroyed and the total et seq.). counties of Archer, Baylor, disposal costs (landfill fees, List of Subjects in 7 CFR Part 301 Throckmorton, and Young during the transportation costs, etc.). 2000–2001 crop season that has not Agricultural commodities, Plant (Approved by the Office of Management and been found to contain a bunted wheat diseases and pests, Quarantine, Budget under control number 0579–0182) kernel, this requirement applies to Reporting and recordkeeping Dated: Done in Washington, DC, this 26th compensation for wheat from the 2002– requirements, Transportation. day of April 2002. 2003 and subsequent crop seasons. The Bill Hawks, Accordingly, we are amending 7 CFR compensation provided in this part 301 as follows: Under Secretary for Marketing and Regulatory paragraph is for wheat grain, certified Programs. PART 301—DOMESTIC QUARANTINE wheat seed, and wheat grown with the [FR Doc. 02–10723 Filed 4–30–02; 8:45 am] NOTICES intention of producing certified wheat BILLING CODE 3410–34–U seed. 1. The authority citation for part 301 * * * * * continues to read as follows: (d) Special allowance for negative DEPARTMENT OF ENERGY Authority: 7 U.S.C. 166, 7711, 7712, 7714, wheat grown in Archer, Baylor, 7731, 7735, 7751, 7752, 7753, and 7754; 7 Throckmorton, and Young Counties, Office of Energy Efficiency and CFR 2.22, 2.80, and 371.3. TX, in the 2000–2001 growing season. Renewable Energy Section 301.75–15 also issued under Sec. Notwithstanding any other provision of 204, Title II, Pub. L. 106–113, 113 Stat. this section, wheat that was harvested 1501A–293; sections 301.75–15 and 301.75– 10 CFR Part 430 from fields in Archer, Baylor, 16 also issued under Sec. 203, Title II, Pub. [Docket Number EE–RM/TP–99–500] L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 Throckmorton, or Young Counties, TX, note). in the 2000–2001 growing season, and RIN 1904–AB04 that tested negative for Karnal bunt after 2. Section 301.89–15 is amended as harvest, is eligible for compensation in Energy Conservation Program for follows: accordance with paragraph (a) of this Consumer Products: Test Procedure a. In the introductory text of section. for Dishwashers; Correction paragraph (a), by removing the last two (e) Special allowance for disposal sentences and by adding three sentences costs for treated uncertified wheat seed AGENCY: Office of Energy Efficiency and in their place to read as follows. in Archer, Baylor, Throckmorton, and Renewable Energy, Department of b. In the introductory text of Young Counties, TX, in the 2000–2001 Energy. paragraph (b), by removing the last two growing season. Notwithstanding any ACTION: Final rule; correction. sentences and by adding two sentences other provision of this section, growers in their place to read as follows. in Archer, Baylor, Throckmorton, or SUMMARY: The Department of Energy c. By adding new paragraphs (d) and Young Counties, TX, who own treated (DOE) published a final rulemaking (e) to read as follows. uncertified wheat seed that tested amending its test procedure for dishwashers on December 18, 2001. § 301.89–15 Compensation for growers, positive for Karnal bunt spores during handlers, and seed companies in the 1999– the 2000–2001 growing season are This document corrects the test 2000 and subsequent crop seasons. eligible for compensation in accordance procedure in the amendatory language of that rulemaking and makes revisions * * * * * with this paragraph. The grower is (a) * * * Growers and handlers of eligible for compensation for the costs of to a reference to an appendix section wheat grown in Oklahoma during the disposing of such wheat seed, by burial and to the equations for determining the 2000–2001 growing season are eligible on the grower’s premises, by burial at a water energy consumption per cycle to receive compensation if the wheat landfill, or through another means using gas-heated or oil-heated water. was commingled in storage with wheat approved by APHIS. The compensation EFFECTIVE DATE: June 17, 2002. that meets the above requirements of for disposing of wheat seed by burial on FOR FURTHER INFORMATION CONTACT: this paragraph. Growers, handlers, and the grower’s premises is $1.00 per Barbara Twigg, U.S. Department of seed companies in areas under the first bushel. The compensation for disposing Energy, Office of Energy Efficiency and regulated crop season are eligible for of wheat seed by burial at a landfill, or Renewable Energy, EE–41, 1000 compensation for 1999–2000 or through another means approved by Independence Avenue, SW., subsequent crop season wheat and for APHIS, is the actual cost of disposal, up Washington, DC 20585–0121, (202) 586– wheat inventories in their possession to $1.20 per bushel, as verified by 8714, email: [email protected], that were unsold at the time the area receipts for disposal costs. To apply for or Francine Pinto, Esq., U.S. Department became regulated. The compensation this compensation, the grower must of Energy, Office of General Counsel, provided in this paragraph is for wheat submit a Karnal Bunt Compensation GC–72, 1000 Independence Avenue, grain, certified wheat seed, wheat held Claim form, provided by FSA, and must SW., Washington, DC 20585–0121, (202)
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586–7432, email: T = nominal water heater temperature consequent reduced controllability of [email protected]. rise = 90° F, the airplane. This action is intended to SUPPLEMENTARY INFORMATION: This C = specific heat of water in btu’s per address the identified unsafe condition. document corrects the test procedure in gallon per degree Fahrenheit = 8.2, DATES: Effective May 16, 2002. a final rule published in the Federal e = nominal gas or oil water heater The incorporation by reference of Register on December 18, 2001 (66 FR recovery efficiency = 0.75. certain publications listed in the 65091), regarding Energy Conservation 5.3.2 Dishwashers that operate with a regulations is approved by the Director Program for Consumer Products: Test nominal inlet water temperature of 120° of the Federal Register as of May 16, Procedure for Dishwashers. This F. For each test cycle, calculate the 2002. correction revises a reference to an water energy consumption using gas Comments for inclusion in the Rules appendix section and revises the heated or oil heated water, W, expressed Docket must be received on or before equations for determining the water in btu’s per cycle and defined as: May 31, 2002. ADDRESSES: energy consumption per cycle using gas- W = V × T × C/e Submit comments in triplicate to the Federal Aviation heated or oil-heated water. where, In rule document FR Doc. 01–18429, Administration (FAA), Transport appearing on page 65091, in the issue of V = reported water consumption in Airplane Directorate, ANM–114, Tuesday, December 18, 2001, the gallons per cycle, as measured in Attention: Rules Docket No. 2002–NM– following corrections are made: section 4.3 of this Appendix, 68–AD, 1601 Lind Avenue, SW., T = nominal water heater temperature Renton, Washington 98055–4056. ° PART 430—[CORRECTED] rise = 70 F, Comments may be inspected at this C = specific heat of water in btu’s per location between 9 a.m. and 3 p.m., § 430.23 [Corrected] gallon per degree Fahrenheit = 8.2, Monday through Friday, except Federal 1. On page 65096 in the first column, e = nominal gas or oil water heater holidays. Comments may be submitted § 430.23(c)(1)(ii)(B) is corrected to read recovery efficiency = 0.75. ‘‘ via fax to (425) 227–1232. Comments as follows: Issued in Washington, DC, on April 26, may also be sent via the Internet using (B) For dishwashers not having a 2002. the following address: 9–anm– truncated normal cycle, David K. Garman, [email protected]. Comments sent EAOC = N × De × En Assistant Secretary for Energy Efficiency and via the Internet must contain ‘‘Docket where, N and De are defined in Renewable Energy. No. 2002–NM–68–AD’’ in the subject paragraph (c)(1)(i) of this section, [FR Doc. 02–10695 Filed 4–30–02; 8:45 am] line and need not be submitted in En= the total electrical energy BILLING CODE 6450–01–P triplicate. Comments sent via fax or the consumption per cycle for the Internet as attached electronic files must normal cycle as defined in section be formatted in Microsoft Word 97 for 1.5 of appendix C, in kilowatt-hours DEPARTMENT OF TRANSPORTATION Windows or ASCII text. and determined according to The service information referenced in section 5.4 of appendix C to this Federal Aviation Administration this AD may be obtained from Empresa subpart, Brasileira de Aeronautica S.A. Et= the total electrical energy 14 CFR Part 39 (EMBRAER), P.O. Box 343—CEP 12.225, consumption per cycle for the Sao Jose dos Campos—SP, Brazil. This [Docket No. 2002–NM–68–AD; Amendment information may be examined at the truncated normal cycle, in kilowatt- 39–12730; AD 2002–08–18] hours and determined according to FAA, Transport Airplane Directorate, section 5.4 of appendix C to this RIN 2120–AA64 1601 Lind Avenue, SW., Renton, subpart.’’ Washington; or at the FAA, Atlanta Airworthiness Directives; Empresa Aircraft Certification Office, One Crown 2. On page 65097 in the second Brasileira de Aeronautica S.A. column, in Appendix C to Subpart B of Center, 1895 Phoenix Boulevard, suite (EMBRAER) Model EMB–135 and –145 450, Atlanta, Georgia; or at the Office of Part 430, Sections 5.3, 5.3.1, and 5.3.2 Series Airplanes are corrected to read as follows: the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC. ‘‘5.3 Water energy consumption per AGENCY: Federal Aviation cycle using gas-heated or oil-heated Administration, DOT. FOR FURTHER INFORMATION CONTACT: Robert Capezzuto, Aerospace Engineer, water. Determine the water energy ACTION: Final rule; request for consumption for dishwashers according comments. Systems and Flight Test Branch, ACE– to sections 5.3.1 and 5.3.2 of this 116A, FAA, Atlanta Aircraft Appendix. Use the notation W for a test SUMMARY: This amendment adopts a Certification Office, One Crown Center, n 1895 Phoenix Boulevard, suite 450, of the normal cycle or Wt for a test of new airworthiness directive (AD) that is the truncated normal cycle. Note that applicable to certain EMBRAER Model Atlanta, Georgia 30349; telephone (770) gas-heated or oil-heated water was used. EMB–135 and –145 series airplanes. 703–6071; fax (770) 703–6097. This action requires repetitive SUPPLEMENTARY INFORMATION: The 5.3.1 Dishwashers that operate with a ° inspections (tests) of the actuator Departmento de Aviacao Civil (DAC), nominal 140 F inlet water temperature, clutches of the primary and backup which is the airworthiness authority for only. For each test cycle, calculate the pitch trim systems of the horizontal Brazil, recently notified the FAA that an water energy consumption using gas- stabilizer for proper pitch trim unsafe condition may exist on certain heated or oil-heated water, W, expressed indications, and replacement of the EMBRAER Model EMB–135 and –145 in btu’s per cycle and defined as: actuator, if necessary. This action is series airplanes. The DAC advises that × × W = V T C/e necessary to prevent loss of pitch trim reports have been received indicating where, command during the takeoff and climb loss of the set point of the actuator V = reported water consumption in phase of flight due to improper set point clutches of the primary and backup gallons per cycle, as measured in of the actuator clutches, which could systems of the horizontal stabilizer. This section 4.3 of this Appendix, result in high pitch control forces and condition, if not corrected, could result
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in loss of pitch trim command during of the actions specified in the service and after the closing date for comments, the takeoff and climb phase of flight, bulletin described previously. in the Rules Docket for examination by which could result in high pitch control interested persons. A report that Applicability forces and consequent reduced summarizes each FAA-public contact controllability of the airplane. Brazilian airworthiness directive concerned with the substance of this AD 2001–10–02, dated November 15, 2001, will be filed in the Rules Docket. Explanation of Relevant Service was superseded by airworthiness Information Commenters wishing the FAA to directive 2001–10–02R1, dated February acknowledge receipt of their comments EMBRAER has issued Service Bulletin 4, 2002, to remove airplane serial submitted in response to this rule must 145–27–0082, dated September 18, number 145499 from the serial numbers submit a self-addressed, stamped 2001, which describes procedures for listed in the applicability. That serial postcard on which the following inspections (tests) of the actuator number has not yet been removed from statement is made: ‘‘Comments to clutches of the primary and backup the effectivity specified in the Docket Number 2002–NM–68–AD.’’ The pitch trim systems of the horizontal referenced service bulletin. Therefore, postcard will be date stamped and stabilizer for proper pitch trim the applicability specified in this AD is returned to the commenter. indications, and replacement of the identical to that in airworthiness actuator, if necessary. The service directive 2001–10–02R1. Regulatory Impact bulletin describes the test for proper Determination of Rule’s Effective Date The regulations adopted herein will pitch trim indications of the primary Since a situation exists that requires not have a substantial direct effect on pitch trim system as applying sequential the States, on the relationship between nose-up trim commands (maximum of the immediate adoption of this regulation, it is found that notice and the national Government and the States, four attempts) of 3 seconds each from or on the distribution of power and the pilot or co-pilot yoke trim switch, opportunity for prior public comment hereon are impracticable, and that good responsibilities among the various until a PIT TRIM 1 INOP or PIT TRIM levels of government. Therefore, it is 2 INOP message appears, which cause exists for making this amendment effective in less than 30 days. determined that this final rule does not indicates that the clutch is acceptable. have federalism implications under The test for proper pitch trim Comments Invited Executive Order 13132. indications of the backup pitch trim Although this action is in the form of system is the same, but is done using The FAA has determined that this a final rule that involves requirements either the main or backup trim switches. regulation is an emergency regulation affecting flight safety and, thus, was not If there is no message and the measured that must be issued immediately to preceded by notice and an opportunity voltage during the trimming attempts is correct an unsafe condition in aircraft, for public comment, comments are greater than 1 volt, the clutch is slipping and that it is not a ‘‘significant invited on this rule. Interested persons and the actuator must be replaced with regulatory action’’ under Executive are invited to comment on this rule by an improved actuator. Order 12866. It has been determined submitting such written data, views, or further that this action involves an The DAC classified this service arguments as they may desire. emergency regulation under DOT bulletin as mandatory and issued Communications shall identify the Regulatory Policies and Procedures (44 Brazilian airworthiness directive 2001– Rules Docket number and be submitted FR 11034, February 26, 1979). If it is 10–02R1, dated February 4, 2002, in in triplicate to the address specified determined that this emergency order to assure the continued under the caption ADDRESSES. All regulation otherwise would be airworthiness of these airplanes in communications received on or before significant under DOT Regulatory Brazil. the closing date for comments will be Policies and Procedures, a final FAA’s Conclusions considered, and this rule may be regulatory evaluation will be prepared amended in light of the comments and placed in the Rules Docket. A copy These airplane models are received. Factual information that of it, if filed, may be obtained from the manufactured in Brazil and are type supports the commenter’s ideas and Rules Docket at the location provided certificated for operation in the United suggestions is extremely helpful in under the caption ADDRESSES. States under the provisions of section evaluating the effectiveness of the AD 21.29 of the Federal Aviation action and determining whether List of Subjects in 14 CFR Part 39 Regulations (14 CFR 21.29) and the additional rulemaking action would be Air transportation, Aircraft, Aviation applicable bilateral airworthiness needed. agreement. Pursuant to this bilateral safety, Incorporation by reference, Submit comments using the following Safety. airworthiness agreement, the DAC has format: kept the FAA informed of the situation • Organize comments issue-by-issue. Adoption of the Amendment described above. The FAA has For example, discuss a request to examined the findings of the DAC, change the compliance time and a Accordingly, pursuant to the reviewed all available information, and request to change the service bulletin authority delegated to me by the determined that AD action is necessary reference as two separate issues. Administrator, the Federal Aviation for products of this type design that are • For each issue, state what specific Administration amends part 39 of the certificated for operation in the United change to the AD is being requested. Federal Aviation Regulations (14 CFR States. • Include justification (e.g., reasons or part 39) as follows: Explanation of Requirements of Rule data) for each request. Comments are specifically invited on PART 39—AIRWORTHINESS Since an unsafe condition has been the overall regulatory, economic, DIRECTIVES identified that is likely to exist or environmental, and energy aspects of develop on other airplanes of the same the rule that might suggest a need to 1. The authority citation for part 39 type design registered in the United modify the rule. All comments continues to read as follows: States, this AD requires accomplishment submitted will be available, both before Authority: 49 U.S.C. 106(g), 40113, 44701.
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§ 39.13 [Amended] number 362200–1007, –1009, –1011, or DEPARTMENT OF TRANSPORTATION 2. Section 39.13 is amended by –1013 on any airplane, unless the actuator adding the following new airworthiness clutch has been inspected as required by Federal Aviation Administration directive: paragraph (a) of this AD. 14 CFR Part 39 2002–08–18 Empresa Brasileira de Alternative Methods of Compliance Aeronautica S.A. (EMBRAER): (c) An alternative method of compliance or [Docket No. 2002–NM–107–AD; Amendment Amendment 39–12730. Docket 2002– adjustment of the compliance time that 39–12728; AD 2002–08–51] NM–68–AD. provides an acceptable level of safety may be RIN 2120–AA64 Applicability: Model EMB–135 and –145 used if approved by the Manager, Atlanta series airplanes; certificated in any category; Aircraft Certification Office (ACO), FAA. Airworthiness Directives; Airbus Model serial numbers 145004 through 145189 Operators shall submit their requests through A300 B2 and B4 Series Airplanes inclusive; 145191 through 145362 inclusive; 145364 through 145373 inclusive; 145375 an appropriate FAA Principal Maintenance Equipped With General Electric CF6– through 145411 inclusive; 145413 through Inspector, who may add comments and then 50 Engines 145461 inclusive; 145463 through 145468 send it to the Manager, Atlanta ACO. AGENCY: inclusive; 145470; 145472 through 145482 Federal Aviation Note 2: Information concerning the Administration, DOT. inclusive; 145485, 145486, and 145488; existence of approved alternative methods of 145490 through 145494 inclusive; 145496 compliance with this AD, if any, may be ACTION: Final rule; request for through 145498 inclusive; 145500 through obtained from the Atlanta ACO. comments. 145502 inclusive; 145504 and 145507; 145508 through 145512 inclusive; 145514, Special Flight Permits SUMMARY: This document publishes in 145515, 145517, and 145518. the Federal Register an amendment Note 1: This AD applies to each airplane (d) Special flight permits may be issued in adopting airworthiness directive (AD) identified in the preceding applicability accordance with sections 21.197 and 21.199 2002–08–51 that was sent previously to provision, regardless of whether it has been of the Federal Aviation Regulations (14 CFR all known U.S. owners and operators of modified, altered, or repaired in the area 21.197 and 21.199) to operate the airplane to Airbus Model A300 B2 and B4 series a location where the requirements of this AD subject to the requirements of this AD. For airplanes equipped with General airplanes that have been modified, altered, or can be accomplished. repaired so that the performance of the Electric CF6–50 engines by individual requirements of this AD is affected, the Incorporation by Reference notices. This AD requires deactivating owner/operator must request approval for an (e) The actions shall be done in accordance both thrust reversers and revising the alternative method of compliance in with EMBRAER Service Bulletin 145–27– airplane flight manual (AFM) to require accordance with paragraph (c) of this AD. 0082, dated September 18, 2001. This performance penalties during certain The request should include an assessment of incorporation by reference was approved by takeoff conditions to ensure that safe the effect of the modification, alteration, or the Director of the Federal Register in and appropriate performance is repair on the unsafe condition addressed by achieved for airplanes on which both this AD; and, if the unsafe condition has not accordance with 5 U.S.C. 552(a) and 1 CFR been eliminated, the request should include part 51. Copies may be obtained from thrust reversers have been deactivated. specific proposed actions to address it. Empresa Brasileira de Aeronautica S.A. This action is prompted by issuance of Compliance: Required as indicated, unless (EMBRAER), P.O. Box 343—CEP 12.225, Sao mandatory continuing airworthiness accomplished previously. Jose dos Campos—SP, Brazil. Copies may be information by a foreign civil To prevent loss of pitch trim command inspected at the FAA, Transport Airplane airworthiness authority. The actions during the takeoff and climb phase of flight Directorate, 1601 Lind Avenue, SW., Renton, specified by this AD are intended to due to improper set point of the actuator Washington; or at the FAA, Atlanta Aircraft prevent uncommanded in-flight clutches of the horizontal stabilizer, which Certification Office, One Crown Center, 1895 deployment of a thrust reverser, which could result in high pitch control forces and Phoenix Boulevard, suite 450, Atlanta, could result in reduced controllability consequent reduced controllability of the Georgia; or at the Office of the Federal of the airplane. airplane, accomplish the following: Register, 800 North Capitol Street, NW., suite DATES: Effective May 6, 2002, to all Repetitive Inspections (Tests)/Replacement 700, Washington, DC. persons except those persons to whom (a) Within 800 flight hours after the Note 3: The subject of this AD is addressed it was made immediately effective by effective date of this AD: Do an inspection in Brazilian airworthiness directive 2001–10– emergency AD 2002–08–51, issued (test) of the actuator clutches of both the 02R1, dated February 4, 2002. April 8, 2002, which contained the primary and backup pitch trim systems of the requirements of this amendment. horizontal stabilizer for proper pitch trim Effective Date indications per EMBRAER Service Bulletin The incorporation by reference of 145–27–0082, dated September 18, 2001. (f) This amendment becomes effective on certain publications listed in the Repeat the test after that every 2,000 flight May 16, 2002. regulations is approved by the Director hours. Issued in Renton, Washington, on April 19, of the Federal Register as of May 6, (1) If either test indicates that the clutch is 2002. 2002. slipping (no PIT TRIM 1 INOP or PIT TRIM Comments for inclusion in the Rules Lirio Liu-Nelson, 2 INOP message appears, and the measured Docket must be received on or before voltage during trim attempts is greater than Acting Manager, Transport Airplane May 31, 2002. 1 volt), before further flight, replace the Directorate, Aircraft Certification Service. ADDRESSES: Submit comments in applicable actuator with an improved [FR Doc. 02–10246 Filed 4–30–02; 8:45 am] actuator and before further flight, repeat the triplicate to the Federal Aviation test. BILLING CODE 4910–13–P Administration (FAA), Transport (2) If both tests indicate that the clutch is Airplane Directorate, ANM–114, acceptable (PIT TRIM 1 INOP or PIT TRIM Attention: Rules Docket No. 2002–NM– 2 INOP message appears), repeat the test at 107–AD, 1601 Lind Avenue, SW., the time specified in paragraph (a) of this AD. Renton, Washington 98055–4056. Spares Comments may be inspected at this (b) As of the effective date of this AD, no location between 9 a.m. and 3 p.m., person shall install an actuator having part Monday through Friday, except Federal
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holidays. Comments may be submitted that the DPV was misassembled during operation in the United States under the via fax to (425) 227–1232. Comments overhaul by the DPV manufacturer in provisions of section 21.29 of the may also be sent via the Internet using 1997. The DPV was installed on the Federal Aviation Regulations (14 CFR the following address: 9-anm- incident airplane in 1999. The 21.29) and the applicable bilateral [email protected]. Comments sent misassembly involved incorrect airworthiness agreement. Pursuant to via fax or the Internet must contain installation of a washer and bushing in this bilateral airworthiness agreement, ‘‘Docket No. 2002–NM–107–AD’’ in the the DPV piston/poppet assembly. the DGAC has kept the FAA informed subject line and need not be submitted Results of vibration-table testing showed of the situation described above as it in triplicate. Comments sent via the that a DPV misassembled in this way pertains to Airbus Model A300 B2 and Internet as attached electronic files must could change positions from ‘‘stow B4 series airplanes. The FAA has be formatted in Microsoft Word 97 for command’’ to ‘‘deploy command’’ on its examined the findings of the DGAC, Windows or ASCII text. own. When a DPV is in the ‘‘deploy reviewed all available information, and command’’ position, a single failure of The applicable service information determined that AD action is necessary the OPSOV could result in an may be obtained from Airbus Industrie, for products of this type design that are 1 Rond Point Maurice Bellonte, 31707 uncommanded deployment of the thrust certificated for operation in the United Blagnac Cedex, France. This reverser during flight. This condition, if States. information may be examined at the not corrected, could result in reduced FAA, Transport Airplane Directorate, controllability of the airplane. Explanation of the Requirements of the 1601 Lind Avenue, SW., Renton, Model A300 B2 and B4 series Rule Washington; or at the Office of the airplanes equipped with General Federal Register, 800 North Capitol Electric CF6–50 engines have the same Since the unsafe condition described Street, NW., suite 700, Washington, DC. nacelle and thrust reverser system as the is likely to exist or develop on other FOR FURTHER INFORMATION CONTACT: Tim airplane on which the event described airplanes of the same type design Backman, Aerospace Engineer, previously occurred. Since a registered in the United States, the FAA International Branch, ANM–116, FAA, misassembled DPV may be installed on issued emergency AD 2002–08–51 to Transport Airplane Directorate, 1601 Model A300 B2 and B4 series airplanes, prevent uncommanded in-flight Lind Avenue, SW., Renton, Washington those airplanes may be subject to the deployment of a thrust reverser, which 98055–4056; telephone (425) 227–2797; unsafe condition identified in this AD. could result in reduced controllability fax (425) 227–1149. Explanation of Relevant Service of the airplane. The AD requires SUPPLEMENTARY INFORMATION: On April Information deactivating both thrust reversers in accordance with the AOT described 8, 2002, the FAA issued emergency AD Airbus has issued All Operators Telex previously. Additionally, this 2002–08–51, which is applicable to (AOT) A300/78A0023, dated April 5, airworthiness directive requires revising Airbus Model A300 B2 and B4 series 2002, which describes procedures for airplanes equipped with General deactivating both thrust reversers on the FAA-approved airplane flight Electric CF6–50 engines. Model A300 B2 and B4 series airplanes. manual (AFM) to require performance The FAA has received a report that, The Direction Ge´ne´rale de l’Aviation penalties during certain takeoff on February 16, 2002, uncommanded Civile (DGAC), which is the conditions to ensure that safe and deployment of a thrust reverser airworthiness authority for France, appropriate performance is achieved for occurred on the number 1 engine of a classified this AOT as mandatory and airplanes on which both thrust reversers McDonnell Douglas Model DC–10–30 issued French telegraphic airworthiness have been deactivated. On an interim airplane equipped with General Electric directive 2002–189(B), dated April 5, basis, this AD includes a penalty of five CF6–50 engines. The uncommanded 2002, to ensure the continued percent of the acceleration-stop distance deployment occurred following climb airworthiness of these airplanes in for takeoffs on wet or contaminated and level-out at 17,000 feet. The France. runways. This penalty is an estimate flightcrew reported severe buffeting of that is necessary to provide an the airplane with yaw to the left and Explanation of Change to Emergency acceptable level of safety until we pitch down of about five degrees. The AD receive more information and a more ‘‘REV UNLOCK’’ light was illuminated The ‘‘Explanation of Relevant Service precise performance penalty can be prior to onset of the buffeting. The Information’’ section of the emergency established. flightcrew shut down the engine, AD states, ‘‘The DGAC * * * issued Since it was found that immediate dumped fuel, turned back to the French telegraphic airworthiness corrective action was required, notice departure airport, and landed the directive 2001–523(B), dated April 5, and opportunity for prior public airplane. No injuries were reported 2002, to ensure the continued comment thereon were impracticable among passengers or crew. airworthiness of these airplanes in and contrary to the public interest, and Uncommanded deployment of a France.’’ The number of the French thrust reverser with a dual translating telegraphic airworthiness directive as good cause existed to make the AD cowl requires a minimum of two cited in the emergency AD is incorrect. effective immediately by individual failures: (1) The over pressure shut-off The correct number is 2002–189(B). The notices issued on April 8, 2002, to all valve (OPSOV) must let pressure enter correct number has been cited in the known U.S. owners and operators of into the thrust reverser actuation section above as well as in NOTE 4 of Airbus Model A300 B2 and B4 series system; and (2) the directional pilot this amendment. The date for the airplanes equipped with General valve (DPV) must command this French telegraphic airworthiness Electric CF6–50 engines. These pressure in the deploy direction. The directive, April 5, 2002, is correct as conditions still exist, and the AD is cause of the presence of pressure in the cited. hereby published in the Federal thrust reverser system has not been Register as an amendment to section determined. FAA’s Conclusions 39.13 of the Federal Aviation Results of a subsequent investigation This airplane model is manufactured Regulations (14 CFR 39.13) to make it by the engine manufacturer revealed in France and is type certificated for effective to all persons.
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Similar AD Action on Other Airplanes Regulatory Impact modified, altered, or repaired in the area subject to the requirements of this AD. For As stated above, the incident The regulations adopted herein will airplanes that have been modified, altered, or described previously occurred on a not have a substantial direct effect on repaired so that the performance of the McDonnell Douglas Model DC–10–30 the States, on the relationship between requirements of this AD is affected, the airplane equipped with General Electric the national Government and the States, owner/operator must request approval for an CF6–50 engines. The FAA is planning to or on the distribution of power and alternative method of compliance in issue an airworthiness directive similar responsibilities among the various accordance with paragraph (b) of this AD. to this one, to require revising the AFM levels of government. Therefore, it is The request should include an assessment of and deactivating the thrust reversers determined that this final rule does not the effect of the modification, alteration, or under certain conditions on those repair on the unsafe condition addressed by have federalism implications under this AD; and, if the unsafe condition has not airplanes. Because the identified unsafe Executive Order 13132. been eliminated, the request should include condition may be especially critical for The FAA has determined that this specific proposed actions to address it. Airbus Model A300 B2 and B4 series regulation is an emergency regulation Compliance: Required as indicated, unless airplanes, the FAA finds it appropriate that must be issued immediately to accomplished previously. to proceed with this action applying to correct an unsafe condition in aircraft, To prevent uncommanded in-flight those airplanes now. and that it is not a ‘‘significant deployment of a thrust reverser, accomplish the following: Interim Action regulatory action’’ under Executive Order 12866. It has been determined This is considered to be interim Thrust Reverser Deactivation and AFM further that this action involves an Revision action until final action is identified, at emergency regulation under DOT (a) Within 72 clock hours after the effective which time the FAA may consider Regulatory Policies and Procedures (44 further rulemaking. date of this AD, accomplish paragraphs (a)(1) FR 11034, February 26, 1979). If it is and (a)(2) of this AD. Comments Invited determined that this emergency (1) Deactivate both thrust reversers regulation otherwise would be according to Airbus All Operators Telex Although this action is in the form of significant under DOT Regulatory A300/78A0023, dated April 5, 2002. a final rule that involves requirements Policies and Procedures, a final (2) Revise the Limitations Section of the affecting flight safety and, thus, was not regulatory evaluation will be prepared Airplane Flight Manual (AFM) to include the preceded by notice and an opportunity following (this may be accomplished by and placed in the Rules Docket. A copy for public comment, comments are inserting a copy of this AD into the AFM): of it, if filed, may be obtained from the invited on this rule. Interested persons ‘‘When the runway is wet or contaminated, Rules Docket at the location provided are invited to comment on this rule by reduce by five percent the corrected ADDRESSES. submitting such written data, views, or under the caption acceleration-stop distance resulting from the arguments as they may desire. List of Subjects in 14 CFR Part 39 airplane flight manual takeoff performance Communications shall identify the analysis. Air transportation, Aircraft, Aviation (Note: This supersedes any relief provided Rules Docket number and be submitted safety, Incorporation by reference, by the Master Minimum Equipment List in triplicate to the address specified Safety. (MMEL).)’’ under the caption ADDRESSES. All communications received on or before Adoption of the Amendment Alternative Methods of Compliance (b) An alternative method of compliance or the closing date for comments will be Accordingly, pursuant to the considered, and this rule may be adjustment of the compliance time that authority delegated to me by the provides an acceptable level of safety may be amended in light of the comments Administrator, the Federal Aviation received. Factual information that used if approved by the Manager, Administration amends part 39 of the International Branch, ANM–116, FAA, supports the commenter’s ideas and Federal Aviation Regulations (14 CFR Transport Airplane Directorate. Operators suggestions is extremely helpful in part 39) as follows: shall submit their requests through an evaluating the effectiveness of the AD appropriate FAA Principal Maintenance or action and determining whether PART 39—AIRWORTHINESS Operations Inspector, as applicable, who may additional rulemaking action would be DIRECTIVES add comments and then send it to the needed. Manager, International Branch, ANM–116. Comments are specifically invited on 1. The authority citation for part 39 Note 3: Information concerning the the overall regulatory, economic, continues to read as follows: existence of approved alternative methods of environmental, and energy aspects of Authority: 49 U.S.C. 106(g), 40113, 44701. compliance with this AD, if any, may be the rule that might suggest a need to obtained from the International Branch, modify the rule. All comments § 39.13 [Amended] ANM–116. submitted will be available, both before 2. Section 39.13 is amended by Special Flight Permits and after the closing date for comments, adding the following new airworthiness (c) Special flight permits may be issued in in the Rules Docket for examination by directive: accordance with sections 21.197 and 21.199 interested persons. A report that 2002–08–51 Airbus: Amendment 39–12728. of the Federal Aviation Regulations (14 CFR summarizes each FAA-public contact Docket 2002–NM–107–AD. 21.197 and 21.199) to operate the airplane to concerned with the substance of this AD Applicability: Model A300 B2 and B4 a location where the requirements of this AD will be filed in the Rules Docket. series airplanes equipped with General can be accomplished. Commenters wishing the FAA to Electric CF6–50 engines, certificated in any Incorporation by Reference acknowledge receipt of their comments category. (d) The deactivation of thrust reversers submitted in response to this rule must Note 1: Airbus Model A300 B4–600 series submit a self-addressed, stamped shall be done in accordance with Airbus All airplanes (commonly referred to as ‘‘A300– Operators Telex A300/78A0023, dated April postcard on which the following 600 series airplanes’’) are not affected by this 5, 2002. This incorporation by reference was statement is made: ‘‘Comments to AD. approved by the Director of the Federal Docket Number 2002–NM–107–AD.’’ Note 2: This AD applies to each airplane Register in accordance with 5 U.S.C. 552(a) The postcard will be date-stamped and identified in the preceding applicability and 1 CFR part 51. Copies may be obtained returned to the commenter. provision, regardless of whether it has been from Airbus Industrie, 1 Rond Point Maurice
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Bellonte, 31707 Blagnac Cedex, France. AD are intended to prevent damaged or 30349; telephone (770) 703–6071; fax Copies may be inspected at the FAA, severed bonding jumpers, which, in the (770) 703–6097. Transport Airplane Directorate, 1601 Lind event of a lightning strike, could result SUPPLEMENTARY INFORMATION: On August Avenue, SW., Renton, Washington; or at the in severed elevator control cables and Office of the Federal Register, 800 North 13, 2001, the FAA issued AD 2001–17– Capitol Street, NW., suite 700, Washington, consequent reduced elevator control 04, amendment 39–12395 (66 FR 43768, DC. capability and reduced controllability of August 21, 2001), applicable to certain Note 4: The subject of this AD is addressed the airplane. This AD is intended to EMBRAER Model EMB–135ER and in French telegraphic airworthiness directive address the identified unsafe condition. –135LR series airplanes, and Model 2002–189(B), dated April 5, 2002. DATES: Effective May 16, 2002. EMB–145, –145ER, –145MR, and Effective Date The incorporation by reference of –145LR series airplanes. That AD EMBRAER Alert Service Bulletin 145– requires a one-time visual inspection to (e) This amendment becomes effective on determine if the two bonding jumpers May 6, 2002, to all persons except those 55–A028, dated April 10, 2002, as listed persons to whom it was made immediately in the regulations, is approved by the that connect the horizontal stabilizer to effective by emergency AD 2002–08–51, Director of the Federal Register as of the vertical stabilizer are properly issued April 8, 2002, which contained the May 16, 2002. installed, and replacement of the jumper requirements of this amendment. The incorporation by reference of with a new jumper, if necessary. That Issued in Renton, Washington, on April 19, EMBRAER Alert Service Bulletin 145– AD also requires a one-time visual 2002. 55–A025, dated June 5, 2001, as listed inspection to determine if the supports Lirio Liu-Nelson, in the regulations, was approved that connect the bonding jumpers to the Acting Manager, Transport Airplane previously by the Director of the Federal horizontal stabilizer are deformed, and Directorate, Aircraft Certification Service. Register as of September 5, 2001 (66 FR corrective actions, if necessary. That AD [FR Doc. 02–10245 Filed 4–30–02; 8:45 am] 43768, August 21, 2001). was prompted by a report indicating that a post-lightning strike inspection of BILLING CODE 4910–13–P Comments for inclusion in the Rules Docket must be received on or before a Model EMB–145 series airplane May 31, 2002. revealed that the bonding jumpers that electrically bond the vertical and DEPARTMENT OF TRANSPORTATION ADDRESSES: Submit comments in horizontal stabilizers were severed, the triplicate to the Federal Aviation Federal Aviation Administration elevator cables were damaged, one Administration (FAA), Transport elevator cable was severed, and the Airplane Directorate, ANM–114, 14 CFR Part 39 other elevator cable had arcing damage. Attention: Rules Docket No. 2002–NM– The actions required by that AD are [Docket No. 2002–NM–111–AD; Amendment 111–AD, 1601 Lind Avenue, SW., 39–12733; AD 2002–08–21] intended to prevent reduced elevator Renton, Washington 98055–4056. control capability, and consequent RIN 2120–AA64 Comments may be inspected at this reduced controllability of the airplane, location between 9:00 a.m. and 3:00 due to severed bonding jumpers. Airworthiness Directives; Empresa p.m., Monday through Friday, except Brasileira de Aeronautica S.A. Federal holidays. Comments may be Actions Since Issuance of Previous Rule (EMBRAER) Model EMB–135 and –145 submitted via fax to (425) 227–1232. Since the issuance of that AD, the Series Airplanes Comments may also be sent via the Departmento de Aviacao Civil (DAC), Internet using the following address: 9- which is the airworthiness authority for AGENCY: Federal Aviation [email protected]. Comments Administration, DOT. Brazil, has advised that a recent sent via fax or the Internet must contain lightning strike event occurred on a ACTION: Final rule; request for ‘‘Docket No. 2002–NM–111–AD’’ in the comments. Model EMB–145 series airplane. subject line and need not be submitted Subsequent inspection revealed that SUMMARY: This amendment supersedes in triplicate. Comments sent via the both bonding jumpers of the horizontal- an existing airworthiness directive (AD), Internet as attached electronic files must to-vertical stabilizer were severed; the applicable to certain EMBRAER Model be formatted in Microsoft Word 97 for control cables of the left lower and right EMB–135ER and ‘‘135LR series Windows or ASCII text. upper elevators near the rear sectors on airplanes, and Model EMB–145, The service information referenced in the horizontal-to-vertical stabilizer were –145ER, –145MR, and –145LR series this AD may be obtained from Empresa also severed. The results of the airplanes, that currently requires a one- Brasileira de Aeronautica S.A. inspection indicated that one of the time inspection to determine if the (EMBRAER), PO Box 343—CEP 12.225, bonding jumpers may have been bonding jumpers that connect the Sao Jose dos Campos—SP, Brazil. This damaged or severed prior to the horizontal stabilizer to the vertical information may be examined at the lightning strike, which could have stabilizer are properly installed, a one- FAA, Transport Airplane Directorate, resulted in the lightning current path time inspection to determine if the 1601 Lind Avenue, SW., Renton, traveling through the elevator control supports that connect the bonding Washington; or the FAA, Atlanta cables. The airplane involved in the jumpers to the horizontal stabilizer are Aircraft Certification Office, One Crown lightning strike event had been deformed, and corrective actions if Center, 1895 Phoenix Boulevard, suite inspected at the factory using the necessary. This amendment requires 450, Atlanta, Georgia; or at the Office of procedures specified in EMBRAER Alert new repetitive inspections to detect the Federal Register, 800 North Capitol Service Bulletin 145–55–A025, dated discrepancies of both vertical-to- Street, NW., suite 700, Washington, DC. June 5, 2001, which is required by AD horizontal stabilizer bonding jumpers FOR FURTHER INFORMATION CONTACT: Rob 2001–17–04. Because certain airplanes and the connecting support structure; Capezutto, Senior Engineer, Systems had already been inspected per and corrective action, if necessary. This and Flight Test Branch, ACE–116A, EMBRAER Alert Service Bulletin 145– amendment also revises the FAA, Atlanta Aircraft Certification 55–A025 at the factory, they were applicability to include additional Office, One Crown Center, 1895 Phoenix therefore not subject to the requirements airplanes. The actions specified in this Boulevard, suite 450, Atlanta, Georgia of that AD. In light of this information,
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the FAA finds that all EMBRAER Model Explanation of Requirements of Rule Interim Action EMB–145 and –135 series airplanes are This is considered to be interim subject to the identified unsafe Since an unsafe condition has been identified that is likely to exist or action until final action is identified, at condition. The applicability of this AD which time the FAA may consider has been revised accordingly. develop on other airplanes of the same type design registered in the United further rulemaking. Explanation of Relevant Service States, this AD supersedes AD 2001–17– Determination of Rule’s Effective Date Information 04 to continue to require a one-time Since a situation exists that requires • The manufacturer has issued inspection to assess the installation of the immediate adoption of this EMBRAER Alert Service Bulletin 145– the bonding jumpers that connect the regulation, it is found that notice and 55–A028, dated April 10, 2002, which horizontal stabilizer to the vertical opportunity for prior public comment describes the following procedures: stabilizer, a one-time inspection to hereon are impracticable, and that good • Repetitive visual inspections of determine if the supports that connect both bonding jumpers of the horizontal- cause exists for making this amendment the bonding jumpers to the horizontal effective in less than 30 days. to-vertical stabilizer to detect stabilizer are deformed, and corrective overstretching, fraying, or other damage; actions if necessary. This AD also Comments Invited and misalignment or other incorrect requires accomplishment of the Although this action is in the form of installation; • repetitive inspections and corrective a final rule that involves requirements Repetitive visual inspections of the actions if necessary, per EMBRAER two supports that connect the bonding affecting flight safety and, thus, was not Alert Service Bulletin 145–55–A028, as preceded by notice and an opportunity jumpers to the horizontal stabilizer to described previously, except as detect deformation and signs of cracks for public comment, comments are discussed below. This AD also requires or ruptures; and invited on this rule. Interested persons • Inspection of any discrepant that operators report the results of each are invited to comment on this rule by support to assess the general condition new repetitive inspection to the DAC. submitting such written data, views, or arguments as they may desire. of its paint. Differences Between AD and Alert Communications shall identify the The alert service bulletin also Service Bulletin describes procedures for corrective Rules Docket number and be submitted actions, which include replacing any This AD requires accomplishment of in triplicate to the address specified discrepant part with a new one and the initial inspection within 100 flight under the caption ADDRESSES. All restoring the support paint. The DAC hours, although EMBRAER Alert communications received on or before classified this alert service bulletin as Service Bulletin 145–55–A028 specifies the closing date for comments will be mandatory and issued Brazilian an initial compliance time of 200 flight considered, and this rule may be emergency airworthiness directive hours. The FAA and the DAC have amended in light of the comments 2001–06–03 R1, dated April 11, 2002, to determined that a 200-flight-hour received. Factual information that ensure the continued airworthiness of compliance time will not address the supports the commenter’s ideas and these airplanes in Brazil. identified unsafe condition in a timely suggestions is extremely helpful in Alert Service Bulletin 145–55–A028 manner. In developing an appropriate evaluating the effectiveness of the AD refines the procedures specified in compliance time for this AD, the FAA action and determining whether EMBRAER Alert Service Bulletin 145– considered the recommendations of additional rulemaking action would be 55–A025 (which is cited in AD 2001– both the DAC and the manufacturer, the needed. 17–04 as the appropriate source of degree of urgency associated with Submit comments using the following service information for the one-time format: addressing the identified unsafe • inspection and associated follow-on condition, the average utilization of the Organize comments issue-by-issue. For example, discuss a request to actions). In addition, Alert Service affected fleet, and the time necessary to change the compliance time and a Bulletin 145–55–A028 recommends that perform the inspection (about 2 hours). request to change the service bulletin the inspection be repeated at regular In light of all of these factors, the FAA reference as two separate issues. intervals. In other respects, the finds a 100-flight-hour initial • For each issue, state what specific procedures specified in the two alert compliance time warranted because it change to the AD is being requested. service bulletins are similar. represents an appropriate interval of • Include justification (e.g., reasons or time allowable for affected airplanes to FAA’s Conclusions data) for each request. continue to operate without These airplane models are Comments are specifically invited on compromising safety. manufactured in Brazil and are type the overall regulatory, economic, certificated for operation in the United In addition, this AD requires that the environmental, and energy aspects of States under the provisions of section inspection required by this AD be the rule that might suggest a need to 21.29 of the Federal Aviation performed immediately following a modify the rule. All comments Regulations (14 CFR 21.29) and the lightning strike or the removal of the submitted will be available, both before applicable bilateral airworthiness horizontal stabilizer, the horizontal and after the closing date for comments, agreement. Pursuant to this bilateral stabilizer actuator, or either seal fairing. in the Rules Docket for examination by airworthiness agreement, the DAC has The Brazilian emergency airworthiness interested persons. A report that kept the FAA informed of the situation directive does not specifically mandate summarizes each FAA-public contact described above. The FAA has an immediate inspection under those concerned with the substance of this AD examined the findings of the DAC, circumstances. This AD includes these will be filed in the Rules Docket. reviewed all available information, and requirements to ensure that the Commenters wishing the FAA to determined that AD action is necessary inspections are performed and reports acknowledge receipt of their comments for products of this type design that are are submitted following any of these submitted in response to this rule must certificated for operation in the United maintenance procedures or any submit a self-addressed, stamped States. lightning strike event. postcard on which the following
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statement is made: ‘‘Comments to Applicability: All Model EMB–135 and– AD, accomplish those actions specified in Docket 2002–NM–111–AD.’’ The 145 series airplanes, certificated in any paragraph (d) of this AD. category. postcard will be date stamped and Corrective Actions returned to the commenter. Note 1: This AD applies to each airplane identified in the preceding applicability (c) For airplanes subject to the Regulatory Impact provision, regardless of whether it has been requirements of paragraph (a) of this AD: If either bonding jumper is not installed The regulations adopted herein will modified, altered, or repaired in the area subject to the requirements of this AD. For properly (e.g., misaligned, signs of previous not have a substantial direct effect on airplanes that have been modified, altered, or elongation, or damage), before further flight, the States, on the relationship between repaired so that the performance of the replace the bonding jumper with a new the national Government and the States, requirements of this AD is affected, the jumper having P/N LN926416X165, per or on the distribution of power and owner/operator must request approval for an EMBRAER Alert Service Bulletin 145–55– responsibilities among the various alternative method of compliance per A025, dated June 5, 2001. levels of government. Therefore, it is paragraph (j) of this AD. The request should Inspection of the Connecting Supports include an assessment of the effect of the determined that this final rule does not (d) For airplanes subject to the have federalism implications under modification, alteration, or repair on the unsafe condition addressed by this AD; and, requirements of AD 2001–17–04: Within the Executive Order 13132. if the unsafe condition has not been next 100 flight hours after September 5, 2001, The FAA has determined that this eliminated, the request should include perform a detailed visual inspection to regulation is an emergency regulation specific proposed actions to address it. determine if the supports that connect the bonding jumpers to the horizontal stabilizers that must be issued immediately to Compliance: Required as indicated, unless correct an unsafe condition in aircraft, are deformed, cracked, or ruptured; per accomplished previously. EMBRAER Alert Service Bulletin 145–55– and that it is not a ‘‘significant To prevent damaged or severed bonding A025, dated June 5, 2001. regulatory action’’ under Executive jumpers, which, in the event of a lightning (1) If no deformation is detected, no further Order 12866. It has been determined strike, could result in severed elevator action is required by this paragraph. further that this action involves an control cables and consequent reduced (2) If any connecting support having emergency regulation under DOT elevator control capability and reduced deformation of 30 degrees or less has any controllability of the airplane, accomplish sign of a painting discrepancy, before further Regulatory Policies and Procedures (44 the following: FR 11034, February 26, 1979). If it is flight, repaint the support per the alert determined that this emergency Restatement of Requirements of AD 2001– service bulletin. The support must remain in 17–04 the position it was found, as specified in the regulation otherwise would be alert service bulletin. significant under DOT Regulatory Inspection of the Bonding Jumpers (3) If any connecting support is deformed Policies and Procedures, a final (a) For airplanes subject to the above 30 degrees or any signs of cracking or regulatory evaluation will be prepared requirements of AD 2001–17–04, amendment ruptures are detected, before further flight, and placed in the Rules Docket. A copy 39–12395: Except as provided by paragraph replace the connecting support with a new of it, if filed, may be obtained from the (f) of this AD, within the next 100 flight support per the alert service bulletin. Rules Docket at the location provided hours after September 5, 2001 (the effective New Requirements of This AD under the caption ADDRESSES. date of AD 2001–17–04), perform a detailed visual inspection to determine if the two (e) For airplanes subject to the List of Subjects in 14 CFR Part 39 bonding jumpers that connect the horizontal requirements of AD 2001–17–04: If the to the vertical stabilizers are properly inspection required by paragraph (f) of this Air transportation, Aircraft, Aviation installed, per EMBRAER Alert Service AD is performed before the inspections safety, Incorporation by reference, Bulletin 145–55–A025, dated June 5, 2001. specified in paragraphs (a) and (d) of this AD, it is not necessary to perform the inspections Safety. Note 2: For the purposes of this AD, a specified in paragraphs (a) and (d) of this AD. Adoption of the Amendment detailed visual inspection is defined as: ‘‘An intensive visual examination of a specific Repetitive Inspections Accordingly, pursuant to the structural area, system, installation, or (f) For all airplanes: Except as required by authority delegated to me by the assembly to detect damage, failure, or paragraphs (g) and (h) of this AD, within 100 Administrator, the Federal Aviation irregularity. Available lighting is normally flight hours after the effective date of this AD, Administration amends part 39 of the supplemented with a direct source of good perform a detailed visual inspection as Federal Aviation Regulations (14 CFR lighting at intensity deemed appropriate by specified in paragraphs (f)(1) and (f)(2) of this the inspector. Inspection aids such as mirror, part 39) as follows: AD, per EMBRAER Alert Service Bulletin magnifying lenses, etc., may be used. Surface 145–55–A028, dated April 10, 2002. If any cleaning and elaborate access procedures discrepancy is found during any inspection PART 39—AIRWORTHINESS may be required.’’ DIRECTIVES required by this paragraph: Before further flight, perform applicable corrective actions Follow-On Action 1. The authority citation for part 39 (including replacing any discrepant part with continues to read as follows: (b) For airplanes subject to the a new part and restoring the support requirements of paragraph (a) of this AD: If painting) per the alert service bulletin. Authority: 49 U.S.C. 106(g), 40113, 44701. both bonding jumpers are installed properly, Repeat the inspection at least every 800 flight before further flight, determine if the jumpers hours, except as provided by paragraphs (g) § 39.13 [Amended] are mechanically tensioned to a slack and (h) of this AD. Submit a report after each 2. Section 39.13 is amended by distance of 5 millimeters (mm) or less inspection per paragraph (i) of this AD. removing amendment 39–12395 (66 FR between the reference line and the jumper as (1) Inspect both bonding jumpers of the 43768, August 21, 2001), and by adding specified in View E of EMBRAER Alert vertical-to-horizontal stabilizer to detect a new airworthiness directive (AD), Service Bulletin 145–55–A025, dated June 5, discrepancies (including overstretching, amendment 39–12733, to read as 2001. fraying, or other damage; and misaligned or (1) If any slack distance is 5 mm or less, follows: otherwise incorrectly installed bonding before further flight, replace the bonding jumper terminals). 2002–08–21 Empresa Brasileira De jumper with a new jumper having part (2) Inspect the connecting support Aeronautica S.A. (Embraer): number (P/N) LN926416X165, per the alert structure to detect deformation or signs of Amendment 39–12733. Docket 2002– service bulletin. cracks or ruptures, and, before further flight, NM–111–AD. Supersedes AD 2001–17– (2) If any slack distance is 6 mm or more, inspect the general conditions of the paint of 04, Amendment 39–12395. at the time specified in paragraph (d) of this any discrepant support.
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Conditional Requirements for Immediate Inspector, who may add comments and then DEPARTMENT OF TRANSPORTATION Inspection send it to the Manager, Atlanta ACO. (g) Notwithstanding the requirements of Note 4: Information concerning the Federal Aviation Administration paragraph (f) of this AD: Before further flight existence of approved alternative methods of following removal of any parts identified in compliance with this AD, if any, may be 14 CFR Part 71 paragraphs (g)(1), (g)(2), and (g)(3) of this AD, obtained from the Atlanta ACO. perform the inspection specified in [Airspace Docket No. 02–ASO–4] paragraph (f) of this AD. The task numbers Special Flight Permits below are identified in EMBRAER Aircraft Establishment of Class D Airspace; Maintenance Manuals AMM–145/1124 and (k) Special flight permits may be issued per Greenville Donaldson Center, SC, AMM–145/1230. sections 21.197 and 21.199 of the Federal Amendment of Class E2 Airspace; (1) The horizontal stabilizer (as specified in Aviation Regulations (14 CFR 21.197 and Greer, Greenville-Spartanburg Airport, EMBRAER Airplane Maintenance Manual 21.199) to operate the airplane to a location SC, and Amendment of Class E5 (AMM) task number 55–10–00–000–801–A). where the requirements of this AD can be Airspace; Greenville, SC (2) The horizontal stabilizer actuator (as accomplished. specified in AMM task number 27–40–02– AGENCY: Federal Aviation 000–801–A). Incorporation by Reference Administration (FAA), DOT. (3) The left-hand or right-hand seal fairings (l) Except as required by paragraphs (g) and ACTION: Final rule. (as specified in AMM task number 55–36– (h) of this AD: The actions must be done per 00–020–002–A00). EMBRAER Alert Service Bulletin 145–55– (h) Before further flight following a SUMMARY: This action establishes Class lightning strike, perform a ‘‘Lightning A025, dated June 5, 2001; and EMBRAER D airspace at Greenville Donaldson Strike—Inspection Check’’ and applicable Alert Service Bulletin 145–55–A028, dated Center, SC, and amends Class E5 corrective actions, per AMM task number 05– April 10, 2002; as applicable. airspace at Greenville, SC. A federal 50–01–06. (1) The incorporation by reference of contract tower with a weather reporting Note 3: Following accomplishment of an EMBRAER Alert Service Bulletin 145–55– system is being constructed at the inspection per paragraph (g) or (h) of this AD, A028, dated April 10, 2002, is approved by Donaldson Center Airport. Therefore, the repetitive interval of the next inspection the Director of the Federal Register, per 5 the airport meets the criteria for may be extended to 800 flight hours after U.S.C. 552(a) and 1 CFR part 51. establishment of Class D airspace. Class accomplishment of the inspection required (2) The incorporation by reference of D surface area airspace is required when by paragraph (g) or (h) of this AD, as EMBRAER Alert Service Bulletin 145–55– applicable. the control tower is open to contain A025, dated June 5, 2001, was approved existing Standard Instrument Approach Reporting Requirement previously by the Director of the Federal Procedures (SIAPs) and other Register as of September 5, 2001 (66 FR (i) At the applicable time specified in Instrument Flight Rules (IFR) operations paragraph (i)(1) or (i)(2) of this AD: Submit 43768, August 21, 2001). at the airport. This action establishes a report of the results (both positive and (3) Copies may be obtained from Empresa Class D airspace extending upward from negative findings) of each inspection Brasileira de Aeronautica S.A. (EMBRAER), the surface to and including 3,500 feet required by paragraphs (f), (g), and (h) of this PO Box 343—CEP 12.225, Sao Jose dos MSL within a 4.2–mile radius of the Campos—SP, Brazil. Copies may be AD to CTA–IFI–FDH, PO Box 6001, 12231– Donaldson Center Airport. A regional 970—Sa˜o Jose´ dos Campos-SP, Brazil; fax 55 inspected at the FAA, Transport Airplane evaluation has determined the existing (12) 3941–4766. Each report must include the Directorate, 1601 Lind Avenue, SW., Renton, Class E5 airspace area should be inspection results, a description of any Washington; or at the FAA, Atlanta Aircraft amended to contain the Nondirectional discrepancy found, the airplane serial Certification Office, One Crown Center, 1895 number, and the number of total flight cycles Phoenix Boulevard, suite 450, Atlanta, Radio Beacon (NDB) or Global and flight hours on the airplane. Information Georgia; or at the Office of the Federal Positioning System (GPS) Runway collection requirements contained in this AD (RWY) 5 SIAP. As a result, additional have been approved by the Office of Register, 800 North Capitol Street, NW., suite 700, Washington, DC. controlled airspace extending upward Management and Budget (OMB) under the from 700 feet Above Ground Level provisions of the Paperwork Reduction Act of Note 5: The subject of this AD is addressed (AGL) southwest of Donaldson Center 1980 (44 U.S.C. 3501 et seq.) and have been in Brazilian emergency airworthiness Airport is needed to contain the SIAP. assigned OMB Control Number 2120–0056. directive 2001–06–03 R1, dated April 11, This action also makes a technical (1) For airplanes on which the initial 2002. inspection required by paragraph (f), (g), or amendment to Class E2 airspace at (h) of this AD is accomplished AFTER the Effective Date Greer, Greenville-Spartanburg Airport, effective date of this AD: Submit the report SC, and the Class E5 airspace for that inspection within 30 days after the (m) This amendment becomes description at Greenville, SC, by initial inspection, and submit a report effective on May 16, 2002. changing the name of the Greenville- thereafter within 30 days after each subsequent inspection. Issued in Renton, Washington, on April 19, Spartanburg Airport to the Greenville- (2) For airplanes on which the initial 2002. Spartanburg International Airport. inspection required by paragraph (f), (g), or Lirio Liu-Nelson, EFFECTIVE DATE: 0901 UTC, November (h) of this AD was accomplished BEFORE the Acting Manager, Transport Airplane 28, 2002. effective date of this AD: Submit the report Directorate, Aircraft Certification Service. FOR FURTHER INFORMATION CONTACT within 30 days after the effective date of this : AD, and submit a report thereafter within 30 [FR Doc. 02–10275 Filed 4–30–02; 8:45 am] Walter R. Cochran, Manager, Airspace days after each subsequent inspection. BILLING CODE 4910–13–P Branch, Air Traffic Division, Federal Aviation Administration, P.O. Box Alternative Methods of Compliance 20636, Atlanta, Georgia 30320; (j) An alternative method of compliance or telephone (404) 305–5586. adjustment of the compliance time that provides an acceptable level of safety may be SUPPLEMENTARY INFORMATION: used if approved by the Manager, Atlanta History Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through On March 12, 2002, the FAA an appropriate FAA Principal Maintenance proposed to amend part 71 of the
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Federal Aviation Regulations (14 CFR PART 71—DESIGNATION OF CLASS A, (Lat. 34°53′44, long. 82°13′08″W) part 71) by establishing Class D airspace CLASS B, CLASS C, CLASS D AND Donaldson Center Airport ° ′ ° ′ ″ at Greenville Donaldson Center, SC, CLASS E AIRSPACE AREAS; (Lat. 34 45 30, long. 82 22 35 W) amending Class E2 airspace at Greer, AIRWAYS; ROUTES; AND REPORTING DYANA NDB (Lat. 34°41′28, long. 82°26′37″W) Greenville-Spartanburg Airport, SC, and POINTS amending the Class E5 airspace at That airspace extending upward from 700 feet above the surface within a 7-mile radius Greenville, SC (67 FR 11068). Class D 1. The authority citation for 14 CFR Part 71 continues to read as follows: of Greenville Downtown Airport and within airspace designations for airspace areas a 10-mile radius of Greenville-Spartanburg extending upward from the surface of Authority: 49 U.S.C. 106(g); 40103, 40113, International Airport and within a 6.7-mile the earth and Class E airspace 40120; EO 10854, 24 FR 9565, 3 CFR, 1959– radius of Donaldson Center Airport and designations for airspace areas 1963 Comp., p. 389; 14 CFR 11.69. within 4 miles northwest and 8 miles ° designated as surface areas and airspace § 71.1 [Amended] southeast of the 224 bearing from the areas extending upward from 700 feet or DYANA NDB extending from the 6.7-mile more above the surface of the earth are 2. The incorporation by reference in radius to 16 miles southwest of the published in Paragraphs 5000, 6002, 14 CFR 71.1 of Federal Aviation Donaldson Center Airport. and 6005 respectively, of FAA Order Administration Order 7400.9J, Airspace * * * * * 7400.9J, dated August 31, 2001, and Designations and Reporting Points, dated August 31, 2001, and effective Dated: Issued in College Park, Georgia, on effective September 16, 2001, which is April 19, 2002. incorporated by reference in 14 CFR September 16, 2001, is amended as follows: Wade T. Carpenter, 71.1. The Class D and Class E airspace Acting Manager, Air Traffic Division, designations listed in this document Paragraph 5000 Class D Airspace. Southern Region. will be published subsequently in the * * * * * [FR Doc. 02–10646 Filed 4–30–02; 8:45 am] Order. ASO SC D Greenville Donaldson Center BILLING CODE 4910–13–M Interested parties were invited to Airport, SC [NEW] participate in this rulemaking proceeding by submitting written Greenville, Donaldson Center Airport, SC (Lat. 34°45′30, long. 82°22′35″W) DEPARTMENT OF TRANSPORTATION comments on the proposal to the FAA. Greenville Downtown Airport No comments objecting to the proposal (Lat. 34°50′52, long. 82°21′00″W) Coast Guard were received. Greenville-Spartanburg International Airport (Lat. 34°53′44, long. 82°13′08″W) 33 CFR Part 165 The Rule That airspace extending upward from the [COTP Houston–Galveston–02–006] This amendment to Part 71 of the surface to and including 3,500 feet MSL Federal Aviation Regulations (14 CFR within a 4.2—mile radius of Donaldson RIN 2115–AA97 part 71) establishes Class D airspace at Center Airport, excluding that airspace Greenville Donaldson Center, SC, within the Greenville Downtown Airport Security Zones; Ports of Houston and amends Class E2 Airspace at Greer, Class D airspace area, and excluding that Galveston, TX airspace within the Greenville-Spartanburg Greenville-Spartanburg, SC, and amends International Airport Class C airspace area. AGENCY: Coast Guard, DOT. Class E5 airspace at Greenville, SC. This Class D airspace area is effective during The FAA has determined that this the specific days and times established in ACTION: Temporary final rule. regulation only involves an established advance by a Notice to Airmen. The effective SUMMARY: The Coast Guard is body of technical regulations for which days and times will thereafter be establishing temporary moving security frequent and routine amendments are continuously published in the Airport/ zones around cruise ships entering and necessary to keep them operationally Facility Directory. departing the ports of Houston and current. It, therefore, (1) is not a * * * * * Galveston, Texas. These security zones ‘‘significant regulatory action’’ under Paragraph 6002 Class E Airspace are needed for the safety and security of Executive Order 12866; (2) is not a Designated as Surface Areas these vessels. Entry into these zones is ‘‘significant rule’’ under DOT * * * * * prohibited, unless authorized by the Regulatory Policies and Procedures (44 ASO SC E2 Greer, Greenville-Spartanburg Captain of the Port, Houston—Galveston FR 11034; February 26, 1979); and (3) International Airport, SC [REVISED] or his designated representative. does not warrant preparation of a Greenville-Spartanburg International Airport, regulatory evaluation as the anticipated SC DATES: This rule is effective from 12 impact is so minimal. Since this is a (Lat. 34°53′44, long. 82°13′08″W) a.m. (noon) on April 8, 2002 through 6 routine matter that will only affect air Within a 5-mile radius of the Greenville- a.m. on June 15, 2002. traffic procedures and air navigation, it Spartanburg International Airport. This Class ADDRESSES: Documents indicated in this is certified that this rule will not have E airspace area is effective during the specific preamble as being available in the dates and times established in advance by a docket, are part of docket [COTP a significant economic impact on a Notice to Airmen. The effective date and time substantial number of small entities will thereafter be continuously published in Houston—Galveston–02–006] and are under the criteria of the Regulatory the Airport/Facility Director. available for inspection or copying at Marine Safety Office Houston— Flexibility Act. * * * * * Galveston, 9640 Clinton Drive, Galena List of Subjects in 14 CFR Part 71 Paragraph 6005 Class E Airspace Areas Park, TX, 77547 between 8 a.m. and Airspace, Incorporation by reference, Extending Upward from 700 feet or More 3:30 p.m., Monday through Friday, Navigation (air). Above the Surface of the Earth except Federal holidays. * * * * * Adoption of the Amendment FOR FURTHER INFORMATION CONTACT: ASO SC E5 Greenville, SC [REVISED] Lieutenant Junior Grade (LTJG) George In consideration of the foregoing, the Greenville Downtown Airport, SC Tobey, Marine Safety Office Houston— Federal Aviation Administration (Lat. 34°50′52, long. 82°21′00″W) Galveston, Texas, Port Waterways amends 14 CFR Part 71 as follows: Greenville-Spartanburg International Airport Management, at (713) 671–5100.
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SUPPLEMENTARY INFORMATION: ‘‘18’’ and continues at this width size of the security zones allow for through Barbours Cut. Between these vessels to safely transit around or Regulatory Information points vessels that must transit the through the zones with minimal We did not publish a notice of navigable channel may seek to gain interference. proposed rulemaking (NPRM) for this permission to pass within 100 yards of 2. Between Houston Ship Channel regulation. Under 5 U.S.C. 553 (b) (B), cruise ships from the Captain of the Port Entrance Lighted Bell Bouy ‘‘18’’ and the Coast Guard finds that good cause Houston—Galveston or his designated Barbours Cut the channel narrows to exists for not publishing a NPRM and representative. Mariners that anticipate 400 feet. In this section the Captain of under 5 U.S.C. 553 (d) (3), good cause encountering a cruise ship in this the Port Houston-Galveston through exists for making this rule effective less section of the channel are encouraged to Vessel Traffic Service (VTS) Houston- than 30 days after publication in the contact ‘‘Houston Traffic’’ prior to Galveston, ‘‘Houston Traffic,’’ and Federal Register. Publishing a NPRM getting underway. designated on scene personnel, may and delaying its effective date would be Regulatory Evaluation grant permission to pass within 100 contrary to public interest since yards of a vessel described by this rule immediate action is needed to respond This rule is not a ‘‘significant to vessels which must transit the to the security concerns which are regulatory action’’ under section 3 (f) of navigable channel. associated with the transit of cruise Executive Order 12866 and does not If you are a small business entity and ships. require an assessment of potential costs are significantly affected by this and benefits under section 6 (a) (3) of Background and Purpose regulation please contact, LTJG George that Order. The Office of Management Tobey, Marine Safety Office Houston- On September 11, 2001, both towers and Budget has not reviewed it under Galveston, Texas, Port Waterways of the World Trade Center and the that Order. It is not ‘‘significant’’ under Management, at (713) 671–5100. Pentagon were attacked by terrorists. the regulatory policies and procedures National security and intelligence of the Department of Transportation Assistance for Small Entities officials have warned that future (DOT) (44 FR 11040, February 26, 1979). Under section 213(a) of the Small terrorist attacks against civilian targets The Coast Guard expects the Business Regulatory Enforcement may be anticipated. economic impact of this rule to be so Fairness Act of 1996 (Pub. L. 104–121), In response to these terrorist acts and minimal that a full regulatory evaluation we offered to assist small entities in warnings, heightened awareness for the is unnecessary under paragraph 10(e) of understanding the rule so they could security and safety of all vessels, ports, the regulatory policies and procedures better evaluate its effects on them and and harbors is necessary. Due to the of DOT is unnecessary. The impacts on participate in the rulemaking process. increased safety and security concerns routine navigation are expected to be Small businesses may send comments surrounding the transit of cruise ships, minimal as the zones will only impact on the actions of Federal employees the Captain of the Port, Houston— navigation for a short period of time and who enforce, or otherwise determine Galveston is establishing temporary the size of the zones allows for the compliance with Federal regulations to security zones around these vessels. transit of most vessels with minimal the Small Business and Agriculture For the purpose of this rule the term delay. Regulatory Enforcement Ombudsman ‘‘cruise ship’’ is defined as a passenger Small Entities and the Regional Small Business vessel over 100 gross tons, carrying Regulatory Fairness Boards. The more than 12 passengers for hire, Under the Regulatory Flexibility Act Ombudsman evaluates these actions making a voyage lasting more than 24 (5 U.S.C. 601–612), we considered annually and rates each agency’s hours any part of which is on the high whether this rule would have a responsiveness to small business. If you seas, and for which passengers are significant economic impact on a wish to comment on actions by embarked or disembarked in the United substantial number of small entities. employees of the Coast Guard, call 1– States or its territories. This definition The term ‘‘small entities’’ comprises 888–REG–FAIR (1–888–734–3247). covers passenger vessels that must small businesses, not-for-profit comply with 33 CFR parts 120 and 128. organizations that are independently Collection of Information The moving security zones will owned and operated and are not This rule calls for no new collection commence when a cruise ship passes dominant in their fields, and of information under the Paperwork the Galveston Bay Approach Lighted governmental jurisdictions with Reduction Act of 1995 (44 U.S.C. 3501– Buoy ‘‘GB’’ inbound and continues populations of less than 50,000. 3520). through its transit, mooring, and return The Coast Guard certifies under 5 transit until it passes the sea buoy U.S.C. 605(b) that this rule will not have Federalism outbound. The establishment of moving a significant economic impact on a A rule has implications for federalism security zones described in this rule substantial number of small entities. under Executive Order 13132, will be announced to mariners via This rule will affect the following Federalism, if it has a substantial direct Marine Safety Information Broadcast. In entities, some of which may be small effect on State or Local governments and the Ports of Houston or Galveston, all entities: the owners or operators of would either preempt State law or vessels within 500 yards of a cruise ship vessels intending to transit a narrow impose a substantial direct cost of must operate at the minimum safe speed portion of the Houston-Galveston Ship compliance on them. We have analyzed required to maintain a safe course. Channel during a transit of a cruise ship this rule under that Order and have Except as described in this rule, no in the same narrow location. These determined that it does not have vessel is permitted to enter within 100 security zones will not have a implications for federalism. yards of a cruise ship unless expressly significant economic impact on a authorized by the Captain of the Port substantial number of small entities for Unfunded Mandates Reform Act Houston—Galveston. the following reasons: The Unfunded Mandates Reform Act The Houston Ship Channel narrows to 1. Between the Houston-Galveston of 1995 (2 U.S.C. 1531–1538) requires 400 feet or less near Houston Ship Sea buoy and Houston Ship Channel Federal agencies to assess the effects of Channel Entrance Lighted Bell Buoy Entrance Lighted Bell Buoy ‘‘18’’ the their discretionary regulatory actions. In
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particular, the Act addresses actions Environment approximately 29°21′06″ N, 94°47′00″ W that may result in the expenditure by a We have considered the [NAD 83] and Barbours Cut where the State, local, or tribal government, in the environmental impact of this rule and Houston Ship Channel narrows to 400 aggregate, or by the private sector of concluded that under figure 2–1, feet or less. When conditions permit, the $100,000,000 or more in any one year. paragraph (34)(g) of Commandant Captain of the Port Houston-Galveston Though this rule will not result in such Instruction M16475.1D, this rule is may permit vessels that must transit the an expenditure, we do discuss the categorically excluded from further navigable channel between these points effects of this rule elsewhere in this environmental documentation. A to enter within 100 yards of a cruise preamble. ‘‘Categorical Exclusion Determination’’ ship. Taking of Private Property is available in the docket for inspection (iii) Moored vessels or vessels or copying where indicated under anchored in a designated anchorage area This rule will not affect the taking of ADDRESSES. are permitted to remain within 100 private property or otherwise have List of Subjects in 33 CFR Part 165 yards of a cruise ship while it is in taking implications under Executive transit. Order 12630, Governmental Actions and Harbors, Marine safety, Navigation Interference with Constitutionally (water), Reporting and recordkeeping (2) Persons or vessels requiring entry Protected Property Rights. requirements, Security measures, within 500 yards of a cruise ship who Waterways. cannot slow to the minimum speed Civil Justice Reform For the reasons discussed in the necessary to maintain a safe course must request express permission to proceed This rule meets applicable standards preamble, the Coast Guard amends 33 from the Captain of the Port Houston- in sections 3(a) and 3(b)(2) of Executive CFR part 165 as follows: Galveston, or his designated Order 12988, Civil Justice Reform, to PART 165—REGULATED NAVIGATION representative. minimize litigation, eliminate AREAS AND LIMITED ACCESS AREAS ambiguity, and reduce burden. (3) For the purpose of this section the 1. The authority citation for part 165 term ‘‘cruise ship’’ is defined as a Protection of Children continues to read as follows: passenger vessel over 100 gross tons, We have analyzed this rule under Authority: 33 U.S.C. 1231; 50 U.S.C. 191, carrying more than 12 passengers for Executive Order 13045, Protection of 33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49 hire, making a voyage lasting more than Children from Environmental Health CFR 1.46. 24 hours, any part of which is on the Risks and Safety Risks. This rule is not 2. A new temporary § 165.T08–035 is high seas, and for which passengers are an economically significant rule and added to read as follows: embarked or disembarked in the United States or its territories. does not create an environmental risk to § 165.T08–035 Security zones; Ports of health or risk to safety that may Houston and Galveston, Texas. (4) The Captain of the Port Houston- disproportionately affect children. (a) Location. Within the Ports of Galveston will inform the public of the moving security zones around cruise Indian Tribal Governments Houston and Galveston, Texas, temporary moving security zones are ships via Marine Safety Information This rule does not have tribal established encompassing all waters Broadcasts. implications under Executive Order within 500 yards of a cruise ship (5) To request permission as required 13175, Consultation and Coordination between Galveston Bay Approach by these regulations contact ‘‘Houston with Indian Tribal Governments, Lighted Buoy ‘‘GB’’, at approximate Traffic’’ via VHF Channels 11/12 or via ° ′ ″ ° ′ ″ because it does not have a substantial position 29 21 18 N, 94 37 36 W [NAD phone at (713) 671–5103. direct effect on one or more Indian 83] and up to, and including, Barbours tribes, on the relationship between the Cut. These zones remain in effect during (6) All persons and vessels within the Federal Government and Indian tribes, the entire transit of the vessel and moving security zones shall comply or on the distribution of power and continues while the cruise ship is with the instructions of the Captain of responsibilities between the Federal moored or anchored. the Port Houston-Galveston and Government and Indian tribes. (b) Effective period. This section is designated on-scene U.S. Coast Guard effective from 12 a.m. (noon) on April patrol personnel. On-scene U.S. Coast Energy Effects 8, 2002 through 6 a.m. on June 15, 2002. Guard patrol personnel include (c) Authority. In addition to 33 U.S.C. commissioned, warrant, and petty We have analyzed this rule under 1231, the authority for this section officers of the U.S. Coast Guard. Executive Order 13211, Actions includes 33 U.S.C. 1226. Concerning Regulations That (d) Regulations. (1) Entry of vessels Dated: April 8, 2002. Significantly Affect Energy Supply, into these zones is prohibited unless K.S. Cook, Distribution, or Use. We have authorized as follows. Captain, U.S. Coast Guard, determined that it is not a ‘‘significant (i) Vessels may enter within 500 yards Captain of the Port Houston-Galveston. energy action’’ under that order because but not closer than 100 yards of a cruise [FR Doc. 02–10645 Filed 4–30–02; 8:45 am] it is not a ‘‘significant regulatory action’’ ship provided they operate at the under Executive Order 12866 and is not minimum speed necessary to maintain a BILLING CODE 4910–15–P likely to have a significant adverse effect safe course. on the supply, distribution, or use of (ii) No vessel may enter within 100 energy. It has not been designated by the yards of a cruise ship unless expressly Administrator of the Office of authorized by the Coast Guard Captain Information and Regulatory Affairs as a of the Port Houston-Galveston. This significant energy action. Therefore, it includes the waters between Houston does not require a Statement of Energy Ship Channel Entrance Lighted Bell Effects under Executive Order 13211. Buoy ‘‘18’’, light list no. 34385 at
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ENVIRONMENTAL PROTECTION existing sources to December 23, 2003. EFFECTIVE DATE: May 1, 2002. AGENCY We believe this extension was FOR FURTHER INFORMATION CONTACT: Joel reasonable to allow sources time to Schaer, OIG Regulations Officer, (202) 40 CFR Part 63 assess the compliance impacts of the 619–0089. [AD–FRL–7204–5] proposed Settlement Agreement SUPPLEMENTARY INFORMATION: The HHS between EPA and the American Crop Office of Inspector General (OIG) issued RIN 2060–AJ34 Protection Association and BASF final regulations on March 18, 2002 (67 Corporation and the agreed-upon rule National Emission Standards for FR 11928) setting forth several revisions amendments that were proposed on Hazardous Air Pollutants for Pesticide and technical corrections to the OIG April 10, 2002 (67 FR 17492). We stated Active Ingredient Production regulations pertaining to fraud and in the direct final rule that if adverse abuse in Federal health care programs. AGENCY: Environmental Protection comments were received by April 22, Among other revisions, to more Agency (EPA). 2002, we would publish a timely accurately reflect threshold amounts ACTION: Withdrawal of direct final rule. withdrawal of the direct final rule, with respect to exclusion actions, we which would have had an effective date clarified § 1001.201(b) to reflect as an SUMMARY: Because EPA received of May 21, 2002. We received an aggravating and mitigating factor both adverse comment, we are withdrawing adverse comment and, therefore, are the actual and intended loss to programs the direct final rule published on March withdrawing the direct final rule. We associated with the conduct of the 22, 2001 (67 FR 13508) to extend the will address this comment in the sanctioned individual or entity. In the compliance date of the national subsequent final action on the parallel final regulations, a typographical error emission standards for hazardous air proposal. pollutants (NESHAP) for Pesticide appeared in § 1001.201(b)(3)(i), with Active Ingredient (PAI) Production. Dated: April 25, 2002. regard to one of the mitigating factors. Under the promulgated rule, the Robert Brenner, Specifically, with respect to the amount compliance date is August 22, 2002 (67 Acting Assistant Administrator, Office of Air of financial loss to a Government FR 13514, March 22, 2002). The direct and Radiation. program or to other individuals or final rule would have extended the [FR Doc. 02–10731 Filed 4–30–02; 8:45 am] entities due to the acts that resulted in the conviction and similar acts, the compliance date to December 23, 2003. BILLING CODE 6560–50–P We stated in that direct final rule that amount appearing on page 11933 of the if we received adverse comment by March 18, 2002 final regulations April 22, 2002, we would publish a DEPARTMENT OF HEALTH AND incorrectly indicated this amount as timely withdrawal in the Federal HUMAN SERVICES ‘‘**$1,5000**.’’ This is now being Register. We received adverse comment corrected to read as ‘‘$1,500.’’ on that direct final rule. We will address Office of the Secretary List of Subjects 42 CFR Part 1001 that comment in a subsequent final Office of Inspector General Administrative practice and action based on the parallel proposal procedure, Fraud, Health facilities, also published on March 22, 2002 (67 Health professions, Medicaid, Medicare. FR 13504). As stated in the parallel 42 CFR Part 1001 Accordingly, 42 CFR 1001 is corrected proposal, we will not institute a second RIN 0991–AB09 comment period on this action. by making the following correcting DATES: As of May 1, 2002, EPA Medicare and Federal Health Care amendment. Programs; Fraud and Abuse; withdraws the direct final rule PART 1001—HEALTHCARE Revisions and Technical Corrections; published at 67 FR 13508 on March 22, INTEGRITY AND PROTECTION DATA Correction 2002. BANK FOR FINAL ADVERSE ADDRESSES: Docket No. A–95–20 AGENCY: Office of Inspector General INFORMATION ON HEALTH CARE contains supporting information used in (OIG), HHS. PROVIDERS, SUPPLIERS AND developing the PAI Production ACTION: Final rule; correction PRACTITIONERS NESHAP. The docket is located at the amendment. U.S. EPA, 401 M Street, SW., 1. The authority citation for part 1001 Washington, DC 20460 in Room M– SUMMARY: This document contains a continues to read as follows: 1500, Waterside Mall (ground floor), correction to the final regulations which Authority: 42 U.S.C. 1302, 1320a–7, and may be inspected from 8:30 a.m. to were published in the Federal Register 1320a–7b, 1395u(h), 1395u(j), 1395u(k), 5:30 p.m., Monday through Friday, on March 18, 2002 (67 FR 11928). These 1395y(d), 1395y(e), 1395cc(b)(2)(D), (E) and excluding legal holidays. regulations set forth several revisions (F), and 1395hh; and sec. 2455, Pub.L. 103– 355, 108 Stat. 3327 (31 U.S.C. 6101 note). FOR FURTHER INFORMATION CONTACT: Mr. and technical corrections to the OIG 2. Section 1001.201 is amended by Randy McDonald, Organic Chemicals regulations pertaining to fraud and republishing the introductory text for Group, Emission Standards Division abuse in Federal health care programs. paragraph (b)(3) and revising paragraph (Mail Code C504–04), U.S. EPA, A typographical error appeared in the (b)(3)(i) to read as follows: Research Triangle Park, North Carolina text of the regulations in § 1001.201(b) 27711, telephone number (919) 541– concerning the amount of financial loss § 1001.201 Conviction relating to program 5402, electronic mail address considered as a mitigating factor when or health care fraud. [email protected]. excluding an individual or entity * * * * * SUPPLEMENTARY INFORMATION: convicted under Federal or State law of (b) Length of exclusion. *** program or health care fraud. (3) Only the following factors may be Why Are We Withdrawing the Direct Accordingly, we are correcting considered as mitigating and a basis for Final Rule? § 1001.201(b)(3)(i) to assure the reducing the period of exclusion— The direct final rule would have technical correctness of these (i) The individual or entity was extended the compliance date for regulations. convicted of 3 or fewer offenses, and the
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entire amount of financial loss (both business hours in the FCC Reference a short-spacing to the license site of actual loss and reasonably expected Information Center (Room CY–A257), Station KWYS–FM, Channel 293C, loss) to a Government program or to 445 12th Street, SW., Washington, DC. Island Park, Idaho. The coordinates for other individuals or entities due to the The complete text of this decision may Channel 293A at Montana City are 46– acts that resulted in the conviction and also be purchased from the 33–43 North Latitude 111–57–39 West similar acts is less than $1,500; Commission’s copy contractor, Qualex Longitude. Since Montana City is * * * * * International, Portals II, 445 12th Street, located within 320 kilometers (200 S.W., Room CY–B402, Washington, DC miles) of the U.S.-Canadian border, Dated: April 25, 2002. 20554. concurrence of the Canadian Ann C. Agnew The Commission, at the request of government was requested but has not Executive Secretary to the Department. Bernice P. Hedrick, allots Channel 233A been received. If a construction permit [FR Doc. 02–10789 Filed 4–30–02; 8:45 am] at Woodbury, Georgia, as the is granted prior to the receipt of formal BILLING CODE 4152–01–P community’s first local aural concurrence in the allotment by the transmission service. See 66 FR 8560, Canadian government, the construction February 1, 2001. Channel 233A can be permit will include the following FEDERAL COMMUNICATIONS allotted at Woodbury in compliance condition: ‘‘Operation with the facilities COMMISSION with the Commission’s minimum specified herein is subject to distance separation requirements with a modification, suspension, or 47 CFR Part 73 site restriction of 6.4 kilometers (10.2 termination without right to hearing, if miles) west to avoid short-spacings to [DA 02–858; MM Docket No. 01–13, RM– found by the Commission to be 10038; MM Docket No. 01–20, RM–10049; the licensed sites of Station KVIC(FM), necessary in order to conform to the MM Docket No. 01–80, RM–10089; MM Channel 236C3, Victoria, Texas, and USA-Canadian FM Broadcast Docket No. 01–81, RM–10090; MM Docket Station KIKK–FM, Channel 239C, Agreement.’’ No. 01–102; RM–10100; MM Docket No. 01– Houston, Texas. The coordinates for The Commission, at the request of 103, RM–10102; MM Docket No. 01–114, Channel 233A at Woodbury are 32–54– Plainville Communications, Channel RM–10128; MM Docket No. 01–136, RM– 40 North Latitude and 84–28–34 West 285A at Plainville, Georgia, as the 10155; MM Docket No. 01–201, RM–10216] Longitude. community’s first local aural The Commission, at the request of transmission service. See 66 FR 26826, Radio Broadcasting Services; Reliance Broadcasting, allots Channel May 15, 2001. Channel 285A can be Woodbury, GA; Reliance, WY; Eagle 265C3 at Reliance, Wyoming, as the allotted at Plainville in compliance with Lake, TX; Montana City, MT; Plainville, community’s first local aural the Commission’s minimum distance GA; Rosholt, WI; Morgantown, KY, transmission service. See 66 FR 10659, separation requirements with a site Boswell, OK and Frederic, MI February 16, 2001. Channel 265C3 can restriction of 6.5 kilometers (4.0 miles) AGENCY: Federal Communications be allotted to Reliance in compliance northwest to avoid a short-spacing to Commission. with the Commission’s minimum the licensed site of Station WFSH–FM, distance separation requirements at city Channel 284C1, Athens, Georgia. The ACTION: Final rule. reference coordinates. The coordinates coordinates for Channel 285A at SUMMARY: This document grants nine for Channel 265C3 at Reliance are 41– Plainville are 34–25–58 North Latitude proposals that allot new channels to 40–09 North Latitude and 109–11–47 and 85–05–48 West Longitude. Woodbury, Georgia, Reliance, Wyoming, West Longitude. The Commission, as the request of Eagle Lake, Texas, Montana City, The Commission, at the request of Craig Norlin, allots Channel 263A at Montana, Plainville, Georgia, Rosholt, Stargazer Broadcasting, Inc., allots Rosholt, Wisconsin, as the community’s Wisconsin, Morgantown, Kentucky, Channel 237C3 at Eagle Lake, Texas, as first local aural transmission service. Boswell, Oklahoma, and Frederic, the community’s first local aural See 66 FR 26826, May 15, 2001. Michigan. See SUPPLEMENTARY transmission service. See 66 FR 20223, Channel 263A can be allotted to Rosholt INFORMATION, infra. April 20, 2001. Channel 237C3 can be in compliance with the Commission’s allotted at Eagle Lake in compliance minimum distance separation DATES: Effective May 28, 2002. The with the Commission’s minimum requirements with a site restriction of window period for filing applications distance separation requirements with a 8.6 kilometers (6.3 miles) northwest to for these allotments will not be opened site restriction of 16.4 kilometers (10.2 avoid a short-spacing to the license site at this time. Instead, the issue of miles) west to avoid short-spacings to of Station WIZD(FM), Channel 260C3, opening these allotments for auction the licensed sites of Station KVIC(FM), Rudolph, Wisconsin, and Station will be addressed by the Commission in Channel 236C3, Victoria, Texas, and WNCY–FM, Channel 262C2, Neenah- a subsequent order. Station KIKK–FM, Channel 239C, Menasha, Wisconsin. The coordinates FOR FURTHER INFORMATION CONTACT: Houston, Texas. The coordinates for for Channel. 263A at Rosholt are 44–40– Sharon P. McDonald, Mass Media Channel 237C3 at Eagle Lake are 29–35– 12 North Latitude and 89–23–45 West Bureau, (202) 418–2180. 15 North Latitude and 96–30–03 West Longitude. SUPPLEMENTARY INFORMATION: This is a Longitude. The Commission, at the request of synopsis of the Commission’s Report The Commission, at the request of Green River Radio Company, allots and Order, MM Docket No. 01–13, MM Montana Magic Investments, Inc., allots Channel 256A at Morgantown, Docket No. 01–20 , MM Docket No. 01– Channel 293A at Montana City, Kentucky, as the community’s first local 80, MM Docket No. 01–81; MM Docket Montana, as the community’s first local aural transmission service. See 66 FR No. 01–102, MM Docket No. 01–103, aural transmissions service. See 66 FR 31597, June 12, 2001. Channel 256A can MM Docket No. 01–114, MM Docket No. 20223, April 20, 2001. Channel 293A be allotted at Morgantown in 01–136, and MM Docket No. 01–201 can be allotted at Montana City in compliance with the Commission’s adopted April 3, 2002, and released compliance with the Commission’s minimum distance separation April 12, 2002. The full text of this minimum distance separation requirements with a site restriction of Commission decision is available for requirements with a site restriction of 11.9 kilometers (7.4 miles) west to avoid inspection and copying during normal 3.8 kilometers (2.4 miles) north to avoid short-spacings to the licensed sites of
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Station WKNK(FM), Channel 256A, 6. Section 73.202(b), the Table of FM Commission’s duplicating contractors, Edmonton, Kentucky, and Station Allotments under Oklahoma, is Qualex International, Portals II, 445 WKDQ(FM), Channel 258C, Henderson, amended by adding Boswell, Channel 12th Street, SW, Room CY–B402, Kentucky. The coordinates for Channel 282C3. Washington, DC, 20554, telephone 202– 256A at Morgantown are 37–15–34 7. Section 73.202(b), the Table of FM 863–2893, facsimile 202–863–2898, or North Latitude and 86–48–40 West Allotments under Texas, is amended by via e-mail [email protected]. Longitude. adding Eagle Lake, Channel 237C3. List of Subjects in 47 CFR Part 73 The Commission, at the request of 8. Section 73.202(b), the Table of FM Radio broadcasting. Boswell Broadcasting Company, allots Allotments under Wisconsin, is Channel 282C3 at Boswell, Oklahoma, amended by adding Rosholt, Channel Federal Communications Commission. the community’s first local aural 263A. John A. Karousos, transmission service. See 66 FR 35768, 9. Section 73.202(b), the Table of FM Assistant Chief, Audio Division, Office of July 9, 2001. Channel 282C3 can be Allotments under Wyoming, is amended Broadcast License Policy, Media Bureau. allotted at Boswell in compliance with by adding Reliance, Channel 265C3. [FR Doc. 02–10785 Filed 4–30–02; 8:45 am] the Commission’s minimum distance BILLING CODE 6712–01–P separation requirements at city Federal Communications Commission. reference coordinates. The coordinates for Channel 282C3 at Boswell are 34– John A. Karousos, FEDERAL COMMUNICATIONS 01–38 North Latitude and 95–52–08 Assistant Chief, Audio Division, Office of COMMISSION West Longitude. Broadcast License Policy, Media Bureau. The Commission, at the request of [FR Doc. 02–10698 Filed 4–30–02; 8:45 am] 47 CFR Part 73 BILLING CODE 6712–01–P Jeraldine Anderson, allots Channel [DA 02–915; MM Docket No. 01–345; RM– 237A at Frederic, Michigan, as the 10344] community’s first local aural FEDERAL COMMUNICATIONS Radio Broadcasting Services; transmission service. See 66 FR 46427, COMMISSION September 5, 2001. Channel 237A can Wickenburg and Salome, AZ be allotted at Frederic in compliance 47 CFR Part 73 AGENCY: Federal Communications with the Commission’s minimum Commission. distance separation requirements with a [DA 02–907; MM Docket No. 99–58; RM– 9461, RM–9611] ACTION: Final rule. site restriction of 7.6 kilometers (4.7 miles) east to avoid short-spacings to the Radio Broadcasting Services; SUMMARY: In response to a proposal filed licensed sites of Station WCFX(FM), Strattanville and Farmington on behalf of Circle S Broadcasting, Inc. Channel 237A, Clare, Michigan, and Township, Pennsylvania (‘‘Circle S’’), licensee of Station Station WJZJ(FM), Channel 238C2, Glen KSWG(FM), Wickenburg, Arizona, the Arbor, Michigan. The coordinates for AGENCY: Federal Communications Audio Division substitutes Channel Channel 237A at Frederic are 44–46–29 Commission. 242C for Channel 242C3 at Wickenburg North Latitude and 84–39–29 West ACTION: Final rule. and modifies the authorization for Longitude. Since Frederic is located Station KSWG(FM) accordingly. within 320 kilometers (200 miles) of the SUMMARY: This Memorandum Opinion Additionally, this document substitutes U.S.-Canadian border, concurrence of and Order affirms action in a Report Channel 270A for vacant Channel 241A the Canadian government has been and Order, 65 FR 77318 (December 11, at Salome, Arizona, to accommodate the obtained. 2000), that allotted FM broadcast Wickenburg modification as requested Channel 267A to Strattanville, by Circle S. See 67 FR 851, January 8, List of Subjects in 47 CFR Part 73 Pennsylvania, and FM broadcast 2002. A counterproposal filed jointly on Radio broadcasting. Channel 291A to Farmington Township, behalf of Circle S and Wickenburg Pennsylvania, as first local aural Associates, LLC was withdrawn. PART 73—RADIO BROADCAST transmission services for those Coordinates used for Channel 242C at SERVICES communities. This document denies a Wickenburg, Arizona, are those of the petition for reconsideration of that petitioner’s specified transmitter site 1. The authority citation for Part 73 Report and Order filed by Strattan located 24.6 kilometers (15.3 miles) continues to read as follows: Broadcasting, Inc., licensee of Station west of the community at coordinates Authority: 47 U.S.C. 154, 303, 334 and 336. WMKX(FM), Brookville, Pennsylvania. 33–54–15 NL and 112–59–02 WL. DATES: Effective upon May 1, 2002. Coordinates used for Channel 270A at § 73.202 [Amended] FOR FURTHER INFORMATION CONTACT: R. Salome are 33–46–54 NL and 113–36– 2. Section 73.202(b), the Table of FM Barthen Gorman, Media Bureau, (202) 42 WL, representing a site restriction 0.1 Allotments under Georgia, is amended 418–2180. kilometer (0.04 mile) north of the by adding Woodbury, Channel 233A SUPPLEMENTARY INFORMATION: This is a community. As Wickenburg and Salome and Plainville, Channel 285A. synopsis of the Commission’s are each located within 320 kilometers 3. Section 73.202(b), the Table of FM Memorandum Opinion and Order, MM of the U.S.-Mexico border, concurrence Allotments under Kentucky, is amended Docket No. 99–58, adopted April 10, of the Mexican government to the by adding Morgantown, Channel 256A. 2002, and released April 19, 2002. The specified allotments was requested, but full text of this Commission decision is has not been received. Therefore, the 4. Section 73.202(b), the Table of FM available for inspection and copying allotment of Channel 242C at Allotments under Michigan, is amended during normal business hours in the Wickenburg and Channel 270A at by adding Frederic, Channel 237A. FCC’s Reference Information Center at Salome are conditioned on concurrence 5. Section 73.202(b), the Table of FM Portals II, CY–A257, 445 12th Street, of the Mexican government in Allotments under Montana, is amended SW, Washington, DC. This document accordance with the 1992 USA-Mexico by adding Montana City, Channel 293A. may also be purchased from the FM Broadcast Agreement. With this
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action, this docketed proceeding is FEDERAL COMMUNICATIONS § 73.202 [Amended] terminated. COMMISSION 2. Section 73.202(b), the Table of FM Allotments under Arizona, is amended DATES: Effective June 3, 2002. A filing 47 CFR Part 73 by adding Paulden, Channel 263C3. window for Channel 270A at Salome, Federal Communications Commission. Arizona, will not be opened at this time. [DA 02–920; MM Docket Nos. 01–156, 01– Instead, the issue of opening this 158; RM–10177, RM–10179] John A. Karousos, allotment for auction will be addressed Assistant Chief, Audio Division, Office of by the Commission in a subsequent Radio Broadcasting Services; Broadcast License Policy, Media Bureau. Order. Paducah, Texas and Paulden, AZ [FR Doc. 02–10788 Filed 4–30–02; 8:45 am] BILLING CODE 6712–01–P FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Communications Nancy Joyner, Media Bureau, (202) 418– Commission. 2180. ACTION: Final rule. DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: This is a Transportation Security Administration synopsis of the Commission’s Report SUMMARY: In this document the Commission considers proposals in two and Order, MM Docket No. 01–345, 49 CFR Part 1511 adopted April 10, 2002, and released separate docketed proceedings: April 19, 2002. The full text of this Dismisses a proposal filed by Charles [Docket No. TSA–2002–11334] Crawford requesting the allotment of Commission decision is available for Channel 296C3 at Paducah, Texas RIN 2110–AA02 inspection and copying during normal because petitioner withdrew its business hours in the FCC’s Reference Aviation Security Infrastructure Fees expression of interest. At the request of Information Center (Room CY–A257), Paulden Broadcasting, Channel 263C3 is AGENCY: Transportation Security 445 12th Street, SW., Washington, DC. allotted at Paulden, Arizona without a Administration, DOT. The complete text of this decision may site restriction. Coordinates for Channel ACTION: Guidance for the Aviation also be purchased from the 263C3 at Paulden are: 34–53–00 NL and Security Infrastructure Fee: Completing Commission’s copy contractor, Qualtex 112–28–00 WL. Jeraldine Anderson and and submitting Appendix A on costs International, Portals II, 445 12th Street, Southwest FM Broadcasting Co., Inc. related to passenger and property SW., Room CY–B402, Washington, DC filed comments in support of the screening for calendar year 2000 20554, telephone (202) 863–2893. allotment. See 66 FR 39128 (July 27, 2001). SUMMARY: The Transportation Security List of Subjects in 47 CFR Part 73 Administration issues this additional DATES: Effective June 6, 2002. Radio broadcasting. guidance for completing Appendix A of FOR FURTHER INFORMATION CONTACT: the Interim Final Rule regarding the Part 73 of title 47 of the Code of Victoria M. McCauley, Media Bureau, Aviation Security Infrastructure Fee. Federal Regulations is amended as (202) 418–2180. That rule requires carriers to provide follows: information on their costs related to SUPPLEMENTARY INFORMATION: This is a passenger and property screening for PART 73—RADIO BROADCAST synopsis of the Commission’s Report 2000. This guidance does not impose SERVICES and Order, MM Docket Nos. 01–156, any additional requirements. 01–158, adopted April 10, 2002, and DATES: This guidance does not alter the released April 22, 2002. The full text of 1. The authority citation for part 73 due date for Appendix A, which this Commission decision is available continues to read as follows: remains on or before May 18, 2002. for inspection and copying during Authority: 47 U.S.C. 154, 303, 334 and 336. normal business hours in the FCC FOR FURTHER INFORMATION CONTACT: For further guidance involving technical § 73.202 [Amended] Reference Center (Room 239), 445 12th Street, SW, Washington, DC. This matters you may contact Randall Fiertz, 2. Section 73.202(b), the Table of FM document may also be purchased from Department of Transportation, Office of Allotments under Arizona, is amended the Commission’s duplicating the Assistant Secretary for Budget and by removing Channel 241A at Salome, contractor, Qualex International, Portals Programs, 400 Seventh St., SW., Room and adding Channel 270A at Salome; II, 445 12th Street, SW, Room CY–B402, 10101, Washington, DC 20590; telephone (202) 366–9192. For further and removing Channel 242C3 at Washington, DC, 20554, telephone 202– guidance on other matters you may Wickenburg and adding Channel 242C 863–2893, facsimile 202–863–2898, or via e-mail [email protected]. contact Steven Cohen, Department of at Wickenburg. Transportation, Transportation Security Federal Communications Commission. List of Subjects in 47 CFR Part 73 Administration, Office of the Chief Counsel (TSA–5), 400 Seventh Street, John A. Karousos, Radio broadcasting. Assistant Chief, Audio Division, Office of SW., Washington, DC, 20590; telephone Broadcast License Policy, Media Bureau. Part 73 of Title 47 of the Code of (202) 493–1231. Office hours are from 9 [FR Doc. 02–10787 Filed 4–30–02; 8:45 am] Federal Regulations is amended as a.m. to 5:30 p.m., e.t. Monday through Friday, except Federal holidays. BILLING CODE 6712–01–P follows: SUPPLEMENTARY INFORMATION: PART 73—RADIO BROADCAST SERVICES Availability of the Guidance An electronic copy of this document 1. The authority citation for Part 73 may be downloaded using a modem and continues to read as follows: suitable communications software from Authority: 47 U.S.C. 154, 303, 334 and 336. the Government Printing Office’s
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Electronic Bulletin Boards Service at provide to TSA, upon request, square footage of the property or facility (202) 512–1661. Internet users may ‘‘[d]ocumentation that explains and (screening space/total space) to the reach the Federal Register’s home page supports the assignment methodology annual costs of the property of facility. at: http://www.nara.gov/fedreg and the used, the applicable pool, and the For example, if 4,000 square feet of a Government Printing Office’s database allocation basis.’’ 16,000 square-foot building is used for at: http://www.access.gpo.gov. In other words, where the costs of screening, then 25 percent of the annual Internet users can access this goods, services, etc., related to costs of that building should be document and all comments received by passenger and property screening were captured in Appendix A. Such a cost DOT through the Department’s docket accounted for in calendar year 2000 (CY allocation could only be made if the management system web site, http:// 2000) in a manner that commingled building was also being used for other dms.dot.gov. It is available 24 hours them with costs not related to passenger activities. If the building was used each day, 365 days each year. Please and property screening, then the carrier solely for functions related to screening follow the instructions online for more completing Appendix A may allocate a passenger or property during CY 2000, information and help. percentage of those total costs to 100 percent of the costs must be passenger and property screening, as Guidance for the Aviation Security included in Appendix A. long as the allocation method is based Infrastructure Fee: Completing and on reasonable business practices. When 2. What To Do if Two or More Cost Submitting Appendix A on Costs assigning costs related to passenger and Categories From Appendix A Are Related to Passenger and Property property screening, a carrier should use Combined in Your Accounting System Screening for Calendar Year 2000 the best available information and must TSA recognizes that carrier The following guidance material is document, explain, and support its basis accounting systems are likely to record intended to assist air carriers and for using and applying that cost two or more cost categories from foreign air carriers (carriers) in assignment methodology. Appendix A in a single category. For submitting the information required by Example for assigning labor costs: instance, the labor costs for ‘‘Checkpoint Appendix A of the Interim Final Rule One possible method is to apply the Screening Personnel’’ and ‘‘Exit Lane on the Aviation Security Infrastructure ratio of total time (hours) that an Monitors’’ may be recorded in a single Fee (IFR), as published on February 20, employee spent on responsibilities account. Similarly, carriers that engaged 2002 on page 7926 of volume 67 of the related to passenger and property in security partnerships or entered into Federal Register. The information screening versus the time spent on all security contracts with other carriers, provided here is only intended as responsibilities (screening time/total airports, or private screening companies guidance. Carriers should not infer that time) to the annual cost of the employee may have a single accounting category it represents the only acceptable means (salary, benefits, etc.). For example, if an that encompasses two or more of the of completing Appendix A. Please note employee spent 30 hours on screening cost categories set forth in Appendix A. that any comments related to the IFR related activities out of a 40-hour work The instructions for Appendix A that were received by the Transportation week, then 75 percent of the cost of that address this issue. The instructions state Security Administration (TSA) will be employee would be allocated to the that ‘‘[t]o the extent necessary, the addressed separately and are not labor costs reported in Appendix A. If reporting air carrier may aggregate those specifically addressed in this guidance. an employee had responsibilities solely specific costs that have been incurred If TSA determines, either based on related to screening passengers or but cannot be stated in the detailed cost comments received or on its own property during CY 2000, then 100 categories requested by the form. analysis of the Appendix A forms percent of the annual cost of that However, all of the costs identified by received from carriers, that the employee must be included in this form must be included in the total applicable regulations or the guidance Appendix A. calculations. In addition, explanations provided herein have been Example for assigning equipment regarding costs that have been misunderstood or misapplied, TSA will costs (expensed or depreciated): One aggregated need to be provided.’’ contact the affected carriers individually possible method is to apply the ratio of The option to aggregate is only and, if necessary, will issue further the total time (hours) the equipment was available ‘‘to the extent necessary,’’ and clarification in the future. used for functions related to passenger where ‘‘specific costs * * * cannot be and property screening versus the time stated.’’ Therefore, carriers should 1. What To Do if a Cost Category spent on all functions (screening time/ consult with appropriate parties, such Identified in Appendix A Is Intermixed total time) to the total cost of the as partner carriers, airports, and With Costs Not Related to Passenger and equipment. For example, if a computer contractors to get information regarding Property Screening in Your Accounting was used for 6 hours for screening individual costs before aggregating any System related functions and for 2 hours on cost categories in Appendix A. If the The instructions in Appendix A of the other functions in an 8-hour workday, carrier is still unable to separate out IFR address this issue. The instructions 75 percent of the cost of the equipment individual costs, as set forth by state: ‘‘Where actual costs of screening would be allocated in Appendix A. Appendix A, the carrier may report passengers and property cannot be However, under this allocations system, those costs to TSA in an aggregated directly identified through an air if a computer was used solely for form. However, the carrier must specify carrier’s accounting system, the air screening related functions, then 100 in supporting documentation which carrier shall use appropriate alternate percent of the cost of the equipment costs have been aggregated and where cost assignment methodology.’’ This would be allocated in Appendix A, even the costs appear in the submitted broad flexibility is qualified by the if it was used for less than a whole work Appendix A. For each cost category that requirement that ‘‘[a]ll costs reported in day. is included in an aggregated amount, Appendix A must be consistent with the Example for assigning property and carriers should indicate where it is air carrier’s financial accounting facility costs: One possible method is to accounted for in the submitted information reported in accordance with apply the ratio of square footage used Appendix A. In such a case, carriers generally accepted accounting for functions related to passenger and should not leave the category blank or principles.’’ Further, carriers must property screening versus the total indicate that there were no costs.
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3. What To Do if Your Screening Costs cost category may be aggregated in that it is necessary to adjust the total for CY 2000 Involve Contracting With a Appendix A, as described in Item 2. amount of the Aviation Security Partner Carrier, an Airport, or a Private Infrastructure Fee that a carrier must 5. What To Do if the Fiscal Year Screening Company pay and/or should have been paying, Recorded in Your Accounting System Is TSA will contact the carrier. In Not the Same as the Calendar Year It is not sufficient to submit an addition, after September 2004, the Appendix A that includes only the cost All cost information in Appendix A Under Secretary may determine a paid by a carrier to partner carriers, must be submitted to reflect calendar different fee or schedule. However, airports, or private screening companies year 2000, not a carrier’s fiscal year unless the Under Secretary makes such under a screening services contract or 2000. Therefore, if a carrier used a fiscal a determination, carriers should other agreement. Even if a carrier year different from the calendar year for continue paying 8.333% monthly. outsourced all of its screening functions, 2000, it may be necessary to allocate its Appendix A submission must still costs over time and among functions. 9. When Payments Are Due identify, for example, the administrative 6. What To Do if You Are, or if You If the last calendar day of the month costs and other related costs incurred by falls on a day on which the carrier the carrier in entering into and Represent, a Carrier That no Longer Provides Air Transportation or cannot make payments, such as a maintaining such contracts and holiday or weekend, then the payment agreements, including any amendments, Intrastate Air Transportation Service, but Did do so in CY 2000 must be received by TSA in advance of modifications, claims settlements, and the last day of the month. TSA will costs incurred for overseeing the Carriers no longer providing air provide payment instructions for the contracts or agreements. It must also transportation or intrastate air Aviation Security Infrastructure Fee on identify costs related to screening transportation in or from the United its web site, www.tsa.dot.gov. TSA will passengers and property incurred by the States do not need to remit the Aviation not be sending bills to carriers for this carrier but not covered by the terms of Security Infrastructure Fee. However, fee. the contract or agreement. under the IFR, they are still required to 10. When To Submit Appendix A The fact that a carrier outsourced its complete and submit an Appendix A. TSA needs to know the costs related to screening functions does not relieve it of As stated in the IFR, the deadline for screening passengers and property the duty to assign costs to specific submitting a completed Appendix A to incurred by all carriers in CY 2000, not categories in Appendix A before TSA is by May 18, 2002. This means just by those carriers still providing air aggregating these costs. This can be that TSA must receive the submission transportation or intrastate air done by examining the relevant on or before that date. contracts and agreements and by transportation today. Beginning in fiscal seeking input from contractors and year 2005, TSA is authorized to re- 11. How To Submit Appendix A determine the per-carrier limit for the partners. In the case of contracts and Appendix A is available electronically Aviation Security Infrastructure Fee, so partnerships involving multiple carriers, at www.tsa.dot.gov. It must be sent by long as the aggregate amount collected be careful to ensure that all screening certified mail to: Chief Financial Officer, from carriers operating at that point costs are reported to TSA, but that each Transportation Security Administration, does not exceed the aggregate screening dollar of the cost is only reported to Department of Transportation, 400 costs of all carriers providing air TSA once. Seventh Street SW., Washington, DC transportation or intrastate air 20590. For electronic submissions, use a 4. What To Do if You Did Not Incur any transportation in or from the United format readable by current versions of Costs for a Cost Category in Appendix States in CY 2000. A Microsoft Word and mail a computer 7. How To Treat Acquired, Merged or disk to the above address or e-mail it to The instructions to Appendix A in the Reorganized Carriers [email protected]. IFR specify that carriers must indicate The IFR states that the successor 12. What the Audit Must Cover those cost categories in which the entity must submit only one Appendix carrier did not have any costs for CY A with all amounts combined, but must Each air carrier must provide for an 2000. This is to be indicated on specify the names of all carriers whose audit of Appendix A performed by an Appendix A by the use of an CY 2000 passenger and property independent certified public appropriately placed zero. Cost screening costs are included in accountant. The auditor must plan and categories that are rolled into an Appendix A. However, for ease of perform an audit to obtain reasonable aggregated total should be so identified, auditing, carriers may keep separate the assurance as to whether the costs not listed as zero. For instance, for Item internal working papers pertaining to reported in Appendix A are ‘‘consistent 34 in Appendix A, ‘‘Management Fees predecessor carriers. with the air carrier’s financial for Oversight of Consortium Contracts’’ accounting information reported in is defined as ‘‘[a]ny costs incurred for 8. How Payments Are Determined accordance with generally accepted fees charged by other organizations for For fiscal years 2002–2004, the IFR accounting principles.’’ The auditor the management of contracts for the requires each carrier to pay 8.333% of must provide a written letter of opinion screening of persons and property.’’ If a the total listed in its Appendix A on a on the accuracy of the costs and other carrier paid any other entity a fee for the monthly basis, except for the period of information reported in Appendix A, management of security contracts, the February 18 through April 30, 2002, for based on the company’s pre-existing amount paid should be included on this which payment of 19.939% is due by financial statements and supporting cost line. If an air carrier did not incur May 31, 2002. documents, and in accordance with such costs, then the reporting carrier Payments for each month following generally accepted auditing standards. should so indicate with a zero in the April 2002 are due by the last calendar This opinion should include a statement appropriate cost category. If a carrier day of the following month. If, at any as to whether the audited Appendix A paid such a contract, but management time, the Under Secretary determines, is free of material misstatements. fees were not segregated out, then this on his own or upon petition by a carrier, However, carriers need not provide for
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an audit of the process of remitting the Atmospheric Administration (NOAA), an effective means of protecting fee. Commerce. leatherback turtles. TSA or other Federal entities may also ACTION: Temporary area gear restriction. Through a final rule (60 FR 47713, audit Appendix A and the supporting September 14, 1995), NMFS established information to ensure that the SUMMARY: NMFS is closing, for a 2–week regulations to provide protection for information provided in Appendix A is period, all inshore waters and offshore leatherback turtles when they occur in true and correct, as well as to ensure waters 10 nautical miles (nm) (18.5 km) locally high densities during their that the Appendix A submitted and fees seaward of the COLREGS demarcation annual, spring northward migration paid are consistent with the line, bounded by 32° N. lat. along the Atlantic seaboard. Within the requirements of the IFR. The decision to (approximately Tybee Island, GA) and Leatherback Conservation Zone, NMFS conduct a Federal audit does not relieve 34° N. lat. (approximately Wilmington may close an area for 2 weeks when a carrier of its own audit burden. Beach, NC) within the Leatherback leatherback sightings exceed 10 animals Conservation Zone, to fishing by shrimp per 50 nm (92.6 km) during repeated 13. When the Audit Is Due trawlers required to have a turtle aerial surveys pursuant to As provided for in the IFR, the audit excluder device (TED) installed in each § 223.206(d)(2)(iv)(A) through (C). is due to be received by TSA no later net that is rigged for fishing, unless the An initial aerial survey conducted on than July 1, 2002. TSA will not enforce TED has an escape opening large April 19, 2002, along the South Carolina this deadline against a carrier that enough to exclude leatherback turtles, coast documented 15 leatherback turtles submits a timely and proper Appendix as specified in the regulations. This between Bull’s Bay and South Island A, makes timely and proper fee action is necessary to reduce mortality (across both zones 32 and 33) and 11 payments, and submits the audit to TSA of endangered leatherback sea turtles leatherback turtles between Pritchard no later than August 1, 2002. incidentally captured in shrimp trawls. Island and Edisto Island in zone 32, DATES: This action is effective from with each area of leatherback 14. How To Submit the Audit April 26, 2002 through 11:59 p.m. (local concentration being less than 50 nm As with Appendix A, submit the audit time) on May 10, 2002. (92.6 km) in length. A replicate survey to: Chief Financial Officer, ADDRESSES: Comments on this action was flown along the South Carolina Transportation Security Administration, should be addressed to the Chief, coast on April 23, 2002. During the Department of Transportation, 400 Endangered Species Division, Office of replicate survey 11 leatherbacks were Seventh Street SW., Washington, DC Protected Resources, NMFS, 1315 East- seen in a 13–nm stretch near Edisto 20590. West Highway, Silver Spring, MD Island in zone 32, 14 leatherbacks were seen in the zone 32 to 33 trackline 20910. Comments may also be sent via 15. What To Do With the CPA’s Working overlap area (from Folly Beach to Cape fax to 301–713–0376. Comments will Papers for the Audit Island, approximately a 42–mile not be accepted if submitted via e-mail stretch), and 15 leatherbacks were seen The IFR indicates that the or the Internet. ‘‘accountant’s working papers with in a 27–mile stretch in zone 33 near the FOR FURTHER INFORMATION CONTACT: respect to the audit must be included Windy Hill area. The sighting David Bernhart (ph. 727–570–5312, fax with this submission.’’ This requirement frequencies in the original and replicate 727–570–5517, e-mail may be satisfied by including in the surveys all met or exceeded the [email protected]); or Barbara audit submission the availability regulatory standard of at least 10 Schroeder (ph. 301-713-1401, fax 301– (location and time) of the accountant’s animals within a 50–nm (92.6–km) 713–0376, e-mail working papers, so long as the working length of survey trackline. [email protected]). The Assistant Administrator for papers are retained and provided to For assistance in modifying TED TSA upon request. Fisheries, NOAA (AA), is closing all escape openings to exclude leatherback inshore waters and offshore waters 10 Issued in Washington, DC, on April 29, sea turtles, fishermen may contact gear nm (18.5 km) seaward of the COLREGS 2002. specialists at the NMFS, Pascagoula, MS demarcation line, bounded by 32 N. lat. Stephen J. McHale, laboratory by phone 228–762–4591 or and 34° N. lat., within the Leatherback Deputy Under Secretary of Transportation for fax 228–769–8699. Conservation Zone to fishing by shrimp Security. SUPPLEMENTARY INFORMATION: trawlers required to have a TED [FR Doc. 02–10930 Filed 4–29–02; 2:36 pm] Prohibitions on taking sea turtles are installed in each net that is rigged for BILLING CODE 4910–62–P governed by regulations implementing fishing, unless the TED installed has an the Endangered Species Act at 50 CFR escape opening large enough to exclude parts 222 and 223. The incidental take leatherback turtles, meeting the DEPARTMENT OF COMMERCE of turtles during shrimp fishing in the specifications at 50 CFR Atlantic Ocean off the coast of the 223.207(a)(7)(ii)(B)(1) or (2) or National Oceanic and Atmospheric southeastern United States and in the 223.207(c)(1)(iv)(B). These regulations Administration Gulf of Mexico is excepted from the specify modifications that can be made taking prohibition pursuant to sea turtle to either single-grid hard TEDs or Parker 50 CFR Parts 222 and 223 conservation regulations at 50 CFR soft TEDs to allow leatherbacks to [Docket No. 020426096–2096–01; I.D. 223.206, which include a requirement escape. 042402D] that shrimp trawlers have a NMFS- The regulations at 50 CFR approved TED installed in each net 223.206(d)(2)(iv) also state that RIN 0648–AP99 rigged for fishing. The use of TEDs fishermen operating in the closed area Sea Turtle Conservation; Restrictions significantly reduces mortality of with TEDs modified to exclude Applicable to Shrimp Trawl Activities; loggerhead, green, Kemp’s ridley, and leatherback turtles must notify the Leatherback Conservation Zone hawksbill sea turtles. Because NMFS Southeast Regional leatherback turtles are larger than the Administrator of their intention to fish AGENCY: National Marine Fisheries escape openings of most NMFS- in the closed area. This aspect of the Service (NMFS), National Oceanic and approved TEDs, use of these TEDs is not regulations does not have a current
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Office of Management and Budget Dated: April 26, 2002. FOR FURTHER INFORMATION CONTACT: control number, issued pursuant to the William T. Hogarth Craig Wingert, 562–980–4021, or Chris Paperwork Reduction Act. Assistant Administrator for Fisheries, Mobley, 301–713–1401. Consequently, fishermen are not National Marine Fisheries. SUPPLEMENTARY INFORMATION: required to notify the Regional [FR Doc. 02–10758 Filed 4–26–02; 4:30 pm] Previous Federal ESA Actions Related Administrator prior to fishing in the BILLING CODE 3510–22–S closed area, but they must still meet the to the Southern California Steelhead gear requirements. ESU DEPARTMENT OF COMMERCE In 1994, NMFS received a petition Classification from the Oregon Natural Resources This action has been determined to be National Oceanic and Atmospheric Council and numerous co-petitioners to not significant for purposes of Executive Administration list west coast steelhead (Oncorhynchus Order 12866. mykiss) populations under the ESA. In The AA is taking this action in 50 CFR Part 224 response to the petition, NMFS accordance with the requirements of 50 conducted a status review of west coast CFR 223.206(d)(2)(iv) to provide [Docket No. 001025296-2079-02; I.D. steelhead (Busby et al., 1996) which protection for endangered leatherback 072600A] identified 15 Evolutionarily Significant sea turtles from incidental capture and Units (ESUs) of steelhead in RIN 0648-AO05 drowning in shrimp trawls. Leatherback Washington, Oregon, Idaho, and California, and assessed their risk of sea turtles are occurring in high Endangered and Threatened Species: extinction. One of these 15 ESUs was concentrations in coastal waters in Range Extension for Endangered the Southern California steelhead ESU shrimp fishery statistical zones 32 and Steelhead in Southern California 33. This action allows shrimp fishing to which was found to be at a high risk of continue in the affected area so long as AGENCY: National Marine Fisheries extinction. fishermen make the required gear Service (NMFS), National Oceanic and Based on this status review and a modifications. Atmospheric Administration (NOAA), consideration of the listing factors in Pursuant to 5 U.S.C. 553(b)(B), the AA Commerce. section 4(a)(1) of the ESA, NMFS proposed to list the Southern California finds that there is good cause to waive ACTION: Final rule. prior notice and opportunity to steelhead as an endangered species in comment on this action. As a sizeable SUMMARY: NMFS has received new August 1996 (61 FR 41541). In August 1997, NMFS published a final rule concentration of leatherback turtles has evidence of steelhead (anadromous listing this ESU as an endangered been observed in an area fished by Oncorhynchus mykiss) presence in two species (62 FR 43937). In the final rule, shrimp trawlers, it is extremely likely locations and spawning in one location NMFS listed only the anadromous life that interactions will occur. It would be south of the current range of the listed form of O. mykiss, and, therefore, impracticable to provide prior notice southern California steelhead defined the listed Southern California and opportunity for comment because Evolutionarily Significant Unit (ESU) steelhead population to include all providing notice and comment would which is currently Malibu Creek. Based naturally spawned populations of prevent the agency from implementing upon this new information, and the steelhead (and their progeny) in streams the necessary action in a timely manner possibility that anadromous O. mykiss may occur in other streams south of from the Santa Maria River in San Luis to protect the endangered leatherback. Obispo County (inclusive) to and Pursuant to 5 U.S.C. 553(d)(3), the AA Malibu Creek if hydrologic and other habitat conditions are favorable, NMFS including Malibu Creek in Los Angeles finds that there is good cause not to County. At the time of listing, NMFS delay the effective date of this rule for is now issuing a final rule under the Endangered Species Act (ESA) that believed Malibu Creek represented the 30 days. Such delay would prevent the southernmost extent of the range of agency from implementing the redefines the geographic range of the listed anadromous O. mykiss population anadromous O. mykiss in southern necessary action in a timely manner to California. protect the endangered leatherback. to include all steelhead and their progeny that occur in coastal river On February 5, 1999, NMFS Accordingly, the AA is making this published a proposed critical habitat basins from the Santa Maria River temporary rule effective April 26, 2002 designation for 19 ESUs of threatened (inclusive) to the U.S. - Mexico Border. through May 10, 2002. This closure has and endangered salmon and steelhead NMFS has reassessed the status of been announced on the NOAA weather distributed throughout Washington, anadromous O. mykiss throughout its channel, in newspapers, and other Oregon, Idaho, and California, including redefined range in Southern California media. Shrimp trawlers may also call the endangered Southern California and concludes that the listed population (727)570–5312 for updated area closure steelhead ESU (64 FR 5740). A final rule continues to be endangered. information. designating critical habitat for these 19 Within the redefined geographic range As prior notice and an opportunity for ESUs, including the Southern California of O. mykiss, only anadromous, public comment are not required to be steelhead ESU, was published on naturally spawned populations, and provided for this notification by 5 February 16, 2000 (65 FR 7764). U.S.C. 553, or by any other law, the their progeny, which reside below Although the critical habitat analytical requirements of 5 U.S.C. 601 naturally occurring and man-made designation for Southern California et seq., are inapplicable. impassable barriers (e.g., impassable steelhead is presently in effect, NMFS The AA prepared an Environmental waterfalls and dams) are listed. has recently sought approval from the Assessment (EA) for the final rule DATES: Effective July 1, 2002. U.S. District Court in the District of requiring TED use in shrimp trawls and ADDRESSES: Assistant Regional Columbia for a consent decree that the regulatory framework for the Administrator, Protected Resources would vacate critical habitat Leatherback Conservation Zone (60 FR Division, NMFS, Southwest Region, 501 designations for Southern California 47713, September 14, 1995). Copies of West Ocean Blvd., Suite 4200, Long steelhead and 18 other salmon/ the EA are available (see ADDRESSES). Beach, CA 90802–4213. steelhead ESUs as a result of litigation
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filed against the agency by the National Mateo Creek (DFG, 2000) and cited in Comments and Responses Association of Homebuilders. In NMFS’ proposed range extension (65 FR Issue: Southern Boundary of Southern conjunction with this action, NMFS also 79328). According to Nielsen and Sage California Steelhead ESU intends to undertake a new and more (2002), this haplotype has not been thorough analysis of critical habitat for found in their previous survey of Comment 1: Many commenters these ESUs, including the economic hatchery O. mykiss strains in California, argued that the southern boundary of impacts of any designation, that is and, therefore, suggests an endemic the listed Southern California steelhead consistent with the ESA and other population structure in San Mateo population (i.e. anadromous O. mykiss) recent Court decisions. Following Creek. Secondly, the DFG has should be extended to the southernmost completion of this analysis, NMFS undertaken periodic field surveys in extent of the species historical range intends to proceed with re-proposing upper San Mateo Creek and Devil’s rather than to just San Mateo Creek. critical habitat designations for these Canyon since May 2000 which have Most argued this boundary should be ESUs including the Southern California documented the continued presence of the U.S.- Mexico border. steelhead. O. mykiss in the watershed. In many Response: NMFS has previously recognized that steelhead historically New Information on Steelhead instances, these surveys were carried out in conjunction with efforts to occurred naturally at least as far south Distribution South of Malibu Creek in as northern Baja California (NMFS, Southern California remove exotic species that might prey upon or compete with O. mykiss. 1996; and 62 FR 43937). However, at the In 1999 and 2000, new information Although these surveys were limited in time the Southern California steelhead became available which indicated that scope and methodology, they ESU was listed as an endangered the anadromous life form of O. mykiss documented the presence of O. mykiss species in 1997 the best available information indicated that persistent (i.e. steelhead) or their progeny occurred through at least August 2001 in Devil’s populations of anadromous O. mykiss in at least two coastal streams south of Canyon. Summaries of the DFG field did not occur in rivers or streams Malibu Creek (Topanga Creek and San surveys for O. mykiss and exotic species further south than Malibu Creek. As Mateo Creek). This new information removal are contained in a series of file described in NMFS’ proposed range included observations of juvenile O. memoranda prepared by DFG staff. mykiss in Topanga Creek by a NMFS extension (65 FR 79328) new NMFS has completed its review and biologist and field and laboratory information became available in 1999 analysis of all available information, investigations conducted by the and 2000 indicating that anadromous O. California Department of Fish and Game including public comments that were mykiss were occupying San Mateo (CDFG) which demonstrated the received on the proposal. This final rule Creek which is in northern San Diego presence and spawning of anadromous formally extends the range of the County. Limited observational O. mykiss in San Mateo Creek (DFG, Southern California steelhead ESU and information also suggested that O. 2000). Based on this new information, reaffirms that it continues to be an mykiss occurred in Topanga Creek. NMFS published a Federal Register endangered species. NMFS’ main objectives in proposing notice in December 2000 proposing to Summary of Comments Received in the range extension for Southern formally recognize that anadromous O. Response to the Proposed Range California steelhead were three-fold: mykiss (or steelhead) ranged further Extension Notice First, to seek public comment on new southward in Southern California than information showing that the freshwater was previously believed to be the case The proposed range extension was geographic range of anadromous O. by extending the range of the listed published on December 19, 2000, with mykiss extended south of Malibu Creek population to San Mateo Creek (65 FR a 60-day comment period that closed on to at least San Mateo Creek; second, to 79328). A detailed discussion of the February 20, 2001. During this period, seek public comment on NMFS new information upon which the range NMFS received numerous requests for a proposal to consider the O. mykiss extension proposal was based is public hearing, as well as requests for found south of Malibu Creek to be part contained in the December 2000 Federal additional time to comment on the of the listed Southern California Register notice. proposal. As a result, NMFS re-opened steelhead ESU; and third, to ensure that Since the range extension was the public comment period for 30 days anadromous O. mykiss occurring south proposed in December 2000, NMFS has on February 21, 2001, and held a public of Malibu Creek, either as isolated obtained some additional new hearing in San Clemente, CA, on March individuals (e.g. Topanga Creek) or as information on O. mykiss in San Mateo 12, 2001. The re-opened public populations (i.e. San Mateo Creek) Creek which was considered in this comment period closed on March 22, would be protected under the ESA. final determination. Additional 2001. NMFS recognizes that habitat suitable microsatellite and mitochondrial DNA Excluding hearing requests, a total of for anadromous O. mykiss may occur in (mtDNA) analyses were conducted by 63 written comments were received on watersheds south of San Mateo Creek Jennifer Nielsen (U.S. Geological the proposal from a broad range of (e.g. San Onofre Creek and perhaps Service, Alaska Science Center in agencies, non-governmental elsewhere) and that anadromous O. Anchorage, AK.) on tissue samples organizations, other groups, and private mykiss historically occurred further taken from 16 O. mykiss collected in citizens. A total of 37 individuals south than San Mateo Creek. For these San Mateo Creek in 1999 and 2000 provided oral comments at the public reasons, and because anadromous O. (Nielson and Sage, 2002). All 16 fish hearing. The vast majority of comments mykiss may stray to streams south of that were analyzed shared the MYS5 supported the proposal, although many San Mateo Creek just as they did to San haplotype that is found throughout the urged NMFS to expand or modify its Mateo Creek in 1997, NMFS intends to range of O. mykiss in California, but proposal. A limited number of consider any anadromous O. mykiss that which is most commonly found in comments were opposed to or neutral are found to occur in coastal streams Southern California populations about the proposal. A summary of the and estuaries between the Santa Maria (Nielsen et al. 1994). This finding is comments on the proposal and NMFS’ River and the U.S.- Mexico border to be consistent with previous genetic responses to those comments are part of the listed Southern California analysis reported for O. mykiss in San presented below by specific issue. steelhead population unless there is
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evidence indicating they are unlisted Issue: Critical Habitat vegetation. Also contributing to NMFS’ resident forms or derived from hatchery Comment 3: One commenter argued determination was the fact that the rainbow trout populations. that unoccupied or highly modified coastal river basins in this geographic As discussed elsewhere in this habitat (specifically the Los Angeles, area were historically important for the document, NMFS believes that San Gabriel, and Santa Ana Rivers) ESU (e.g. Santa Ynez, Ventura, and anadromous O. mykiss do not presently would be very costly to restore, and, Santa Clara Rivers), and many of the occur further south than San Mateo therefore, should be excluded from any river basins, both large and small and in relatively close proximity to one Creek, and in only two locations future modification of the existing another, continued to support between Malibu Creek and San Mateo critical habitat designation for this ESU. anadromous O. mykiss though at low Creek. However, the southern boundary Response: The ESA requires NMFS to levels of abundance on the scale of both of anadromous O. mykiss in Southern designate critical habitat or make individual river basins and the entire California is likely to vary over time as revisions to critical habitat on the basis of the best scientific data available, but ESU. a result of variable and unpredictable In contrast, the situation that only after taking into consideration the rainfall patterns and freshwater habitat currently exists for coastal river basins economic impacts of specifying any conditions, and the ability of the south of Malibu Creek is quite different. anadromous form to stray or colonize particular area as critical habitat. Recent information, as discussed new habitats. As information becomes Therefore, in making any future elsewhere in this document, does available in the future that a persistent revisions to the existing critical habitat demonstrate that anadromous O. mykiss population of anadromous O. mykiss designation for the Southern California occur in at least two coastal river basins occurs in any other streams south of steelhead ESU, NMFS will consider the south of Malibu Creek (i.e. San Mateo Malibu Creek, NMFS will promptly economic impacts of designating any Creek and Topanga Creek). The inform the public by means of additional habitat whether it is population in San Mateo Creek was only notification in the Federal Register. occupied by steelhead or not. re-established recently as a result of Unless NMFS’ failure to designate Comment 2: A few commenters adults that strayed into the watershed specific areas as critical habitat will and spawned in 1997, and the presence asserted that the proposed range result in the extinction of a listed extension was not justified and or was of O. mykiss in Topanga Creek may be species, the ESA allows the agency to transitory. There is no evidence that inappropriate because there is no exclude areas from critical habitat if it information indicating that steelhead anadromous O. mykiss occupy any of is determined that the benefits of such the other coastal river basins between occur in those streams located between an exclusion outweigh the benefits of Malibu Creek and San Mateo Creek. Malibu Creek and San Mateo Creek, and specifying such an area as part of the many of these basins are so highly Response: NMFS disagrees. NMFS critical habitat. Because virtually all of modified that they can not support believes the best available information the freshwater habitat available to anadromous O. mykiss. Further, there is indicates that the O. mykiss in San steelhead south of Malibu Creek (the no evidence that any other coastal river Mateo Creek are the progeny of current southern extent of critical basins south of San Mateo Creek, within steelhead that originated from some habitat for this ESU) to at least San the historic range of steelhead, currently other stream located within the Mateo Creek is highly modified, and, support the anadromous life form of O. geographic range of the Southern therefore, unlikely to support steelhead mykiss. Because only two coastal California steelhead ESU and spawned without substantial habitat restoration, watersheds south of Malibu Creek in that watershed in 1997. As noted NMFS intends to carefully evaluate and support anadromous O. mykiss, elsewhere in this final notice, the best weigh the benefits of designating these including San Mateo Creek which is available information NMFS possessed habitats as critical habitat or excluding well separated from the remainder of at the time of listing in 1997 suggested them from any revised designation. the populations in the listed ESU, and that anadromous O. mykiss did not Comment 4: Many commenters virtually all other coastal watersheds occur further south than Malibu Creek. argued that in conjunction with the south of Malibu Creek do not support Therefore, the new evidence indicating range extension for this ESU, NMFS this anadromous life history form, that anadromous O. mykiss now occupy should be designating critical habitat for NMFS believes there is insufficient San Mateo Creek constitutes a southern steelhead in all watersheds south of information at present to determine if extension of the range for this listed life Malibu Creek, including San Mateo all or some of the freshwater habitat history form. The fact that anadromous Creek, that are within the historic range south of Malibu Creek, whether O. mykiss do not generally occur in of steelhead whether the habitat is occupied or unoccupied, is essential for streams between Malibu Creek and San occupied or not. the conservation of this ESU. Mateo Creek has no bearing on whether Response: In making its critical NMFS believes that a determination or not the fish in San Mateo Creek are habitat designation for the endangered of how much habitat south of Malibu part of the listed Southern California Southern California steelhead ESU in Creek is essential for the conservation of steelhead ESU. As NMFS emphasized in February 2000 (65 FR 7764), the agency this ESU is best left to NMFS’ technical the proposed range extension, the concluded that all occupied and recovery planning process because it habitat conditions in virtually all of the accessible river reaches and estuarine will be closely linked to the streams located between Malibu Creek areas in coastal river basins ranging development of biological recovery and San Mateo Creek (e.g. Los Angeles from the Santa Maria River southward goals for this ESU. The development of River, San Gabriel River, Santa Ana to and including Malibu Creek were biological recovery goals will be the first River, San Juan Creek, etc.) are highly essential for the recovery of the ESU. task of the NMFS’ appointed technical modified, and, therefore, are not This determination was made, in part, recovery team that will be responsible presently suitable for utilization by because these basins were thought to for addressing the Southern California steelhead. Absent significant habitat provide essential habitat features such steelhead ESU, and this task will require restoration efforts, NMFS does not as spawning, rearing, and migration an assessment of the population expect these rivers or streams to support habitat, food resources, sufficient water structure of the ESU, as well as an steelhead in the future. quality and quantity, and riparian evaluation of how many populations of
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O. mykiss, including both their the development of biological recovery within the ‘‘historic range’’ of the geographic distribution and size, are goals for this ESU. If NMFS’ recovery species should be part of the listed necessary to achieve recovery of the planning process concludes that specific Southern California steelhead ESU. entire ESU. If NMFS’ recovery team freshwater and estuarine habitats south Response: NMFS’ December 2000 concludes through this assessment of Malibu Creek, including San Mateo proposed range extension dealt only process that recovery of this ESU will Creek, are essential for recovery of the with the anadromous form of O. mykiss, require anadromous O. mykiss ESU, then NMFS will do the requisite for which new distributional populations and the habitat to support economic analyses necessary to revise information was available, and did not them in coastal river basins south of the existing critical habitat designation. address the status of resident forms Malibu Creek, then NMFS will conduct As specified in Section 4(b)(2) of the above and below barriers. The the requisite economic analysis to ESA, however, NMFS may exclude an relationship of resident forms to the determine if these areas should be area from a critical habitat designation anadromous form and the status of incorporated into the existing critical if the benefits of such an exclusion resident forms under the ESA is the habitat designation for this ESU. outweigh the benefits of specifying the subject of pending litigation. Comment 5: Many commenters area as part of the designation, provided Comment 9: Camp Pendleton argued that NMFS should designate that excluding the area will not result in questioned the long-term sustainability critical habitat above manmade barriers the extinction of the listed species for or viability of the steelhead population throughout the current and historic which the habitat is being designated. In in San Mateo Creek in light of the range of steelhead in this ESU in making any future determination about variable rainfall, streamflow, and other conjunction with the range extension. designating critical habitat south of habitat conditions for steelhead in Response: In February 2000, NMFS Malibu Creek, including the San Mateo Southern California. They also designated critical habitat for the Creek watershed on Camp Pendleton, expressed concerns about the costs of Southern California steelhead ESU, NMFS will thoroughly evaluate whether maintaining habitat for a population which included all occupied and or not any potentially designated areas that might not be viable in the long- accessible freshwater habitat in may be excluded from the designation term. watersheds ranging from the Santa based on this weighing of benefits. Response: The long-term persistence Maria River southward to Malibu Creek, Comment 7: One commenter argued of steelhead in San Mateo Creek may be which was considered to be the current that NMFS failed to comply with the uncertain given its distance from range of listed anadromous O. mykiss at National Environmental Policy Act potential source populations, the highly that time. River reaches that were (NEPA) and prepare an economic variable rainfall conditions in southern inaccessible to anadromous O. mykiss analysis. California that influence access to this above specific manmade barriers (e.g. Response: The main objectives of watershed, and other factors affecting O. dams), however, were not included in NMFS’ proposal were to recognize that mykiss within the watershed. However, the critical habitat designation. This the freshwater geographic range of the steelhead in San Mateo Creek approach was consistent with NMFS’ anadromous O. mykiss extended further should not be viewed as an independent previous determination to list only the south than was previously thought to be population or subpopulation that is anadromous life form of O. mykiss the case, and to ensure that any unconnected to other steelhead below manmade barriers. anadromous O. mykiss occurring south populations or subpopulations in While substantial amounts of habitat of Malibu Creek were protected under southern California. In contrast, the historically occupied by anadromous O. the ESA. In effect, the proposal was steelhead in San Mateo Creek should be mykiss may occur above manmade intended to aimed at clarifying the viewed as part of a larger meta- barriers in some watersheds in the geographic range of a previously listed population unit that is comprised of Southern California steelhead ESU (e.g. population. Because NMFS’ proposal many other populations or the Santa Ynez River, Ventura River, dealt with the geographic revision of a subpopulations occupying other streams Santa Clara River), NMFS has not presently listed ESU and did not in the ESU, and it is the viability of this conducted an assessment to determine if propose any modification to the existing larger population unit that is most all or some of these blocked habitat critical habitat designation, there was no important. Individually, the production areas are currently essential for the statutory requirement for NMFS to capability of small coastal streams in recovery of this steelhead ESU. In prepare any economic analyses. If this ESU such as San Mateo Creek may addition, the agency has not performed NMFS concludes that the existing be relatively small compared to larger, the requisite economic analyses needed critical habitat designation for this ESU perennial river systems that are more to designate blocked habitat areas that should be revised in the future to productive and can support larger are unoccupied as critical habitat. include freshwater and estuarine populations, but collectively both the Comment 6: Several commenters habitats south of Malibu Creek, then the small and large systems in the ESU argued that critical habitat should be requisite economic analyses required by provide a means to ensure a greater designated for steelhead on Camp the ESA and our implementing diversity of populations and/or Pendleton Marine Corps Base and that regulations will be prepared. NMFS has subpopulations in the larger meta- NMFS should not exclude this habitat previously determined that it is not population unit. In addition, the smaller from any designation because of necessary to prepare NEPA analyses for systems provide for range expansion concerns about impacts to the military listing decisions or critical habitat and recovery after drought or other mission of the Base. designations made pursuant to the ESA perturbations that reduce population Response: As discussed previously, (See NOAA Administrative Order 216- numbers. The utilization of larger NMFS believes that any assessment of 6). numbers of both small and large scale whether or not freshwater and estuarine habitats by anadromous O. mykiss habitat south of Malibu Creek is Issue: Biology and Ecology of Steelhead increases the likelihood of the long-term essential for recovery of this ESU, Comment 8: Many commenters persistence of the ESU. The fact that the including San Mateo Creek which asserted that ‘‘resident’’ rainbow trout O. mykiss population in San Mateo occurs in large part on Camp Pendleton, (resident O. mykiss) occurring both Creek is derived from anadromous needs to be made in conjunction with above and below dams or other barriers parents that entered the watershed and
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spawned indicates that adult steelhead occurred further south than San Mateo south of Malibu Creek in Orange and can still utilize this system when Creek. For these reasons, and because San Diego counties will need to be conditions allow them to do so, and this anadromous O. mykiss may stray to restored to achieve recovery of the underscores the need to protect the streams south of San Mateo Creek and Southern California steelhead ESU. The habitat values that still exist and occupy them when habitat conditions determination of how much historically provide for steelhead utilization of the allow them to do so, NMFS will occupied habitat, if any, must be system. consider any anadromous O. mykiss restored to achieve recovery of this ESU Comment 10: One commenter found south of San Mateo Creek to be is closely related to the development of questioned whether specific part of the listed ESU unless there is biological recovery goals for this ESU. populations of landlocked O. mykiss evidence indicating they are non-listed As discussed elsewhere in this (i.e. Pauma Creek and Sweetwater resident forms or are derived from document, the development of Creek) would be part of the listed hatchery rainbow trout populations. biological recovery goals will require an Southern California steelhead ESU, and, Because the southern extent of the range assessment of the population structure therefore, protected under the ESA as a of anadromous O. mykiss may vary over of the ESU and an evaluation of how result of this proposal. time rather than remain fixed as a result many populations, including their size Response: NMFS’ December 2000 of variable rainfall and other habitat and spatial distribution, are necessary to proposed range extension dealt only conditions and the ability of the life achieve recovery. If the recovery with the anadromous form of O. mykiss, form to stray from natal streams, NMFS planning process determines that for which new distributional has decided not to delineate a specified recovery of this ESU will require the information was available, and did not southern boundary for this ESU in this restoration of habitat and establishment address the status of landlocked final determination. of populations in currently unoccupied populations of resident forms. NMFS areas south of Malibu Creek, then a key Issue: Recovery and Management of and FWS are currently engaged in component of the recovery planning Southern California Steelhead discussions regarding this issue. effort will be to identify specific Comment 11: One commenter Comment 12: One commenter unoccupied streams that need to be questioned why San Onofre Creek, indicated that a recovery plan is needed restored and to lay out the measures which has steelhead habitat but does for the Southern California steelhead needed to achieve that restoration. not currently support a steelhead ESU and that any such plan must Comment 14: One commenter population, was not specifically include the recently discovered San advocated the development and included in the range extension. Mateo Creek population and any other implementation of a comprehensive Response: The main objectives of steelhead populations that occur south restoration plan for steelhead and its NMFS’ proposed range extension were of Malibu Creek. habitat in San Mateo and San Onofre three-fold: First, to notify the public that Response: NMFS agrees that a Creeks, both of which are located on there was new information showing that recovery plan is needed for the Camp Pendleton. the freshwater geographic range of endangered Southern California Response: NMFS supports the anadromous O. mykiss extended south steelhead ESU. Within the next 6 development of a restoration plan for of Malibu Creek to at least San Mateo months, NMFS is committed to San Mateo and San Onofre Creeks. As Creek; second, to notify the public that establishing a recovery team to develop discussed in the proposed rule, NMFS considered the O. mykiss found biological recovery goals that will California voters passed a State-wide south of Malibu Creek to be part of the provide the framework for identifying initiative that provided $800,000 for the listed Southern California steelhead and evaluating the management and restoration of these two creeks to population; and third, to ensure that other measures that need to be support native fish species such as anadromous O. mykiss occurring south implemented to achieve recovery of the steelhead, three-spine stickleback, and of Malibu Creek, either as isolated ESU. As part of developing the arroyo chub. The California Coastal individuals or as populations would be biological recovery goals for this ESU, Conservancy controls these funds and is protected under the ESA. the recovery team will investigate the in the process of working with a wide As discussed in the proposed rule, the population structure of this ESU and range of agencies and organizations new information that is available then identify the number, size, and including the Cleveland National Forest, suggests that anadromous O. mykiss spatial distribution of populations and Camp Pendleton Marine Corps Base, only occur as far south as San Mateo subpopulations that are needed over the FWS, DFG, NMFS, and environmental Creek. Although San Onofre Creek is geographic range of the ESU to achieve groups to develop and implement a located in close proximity to San Mateo recovery. In making this assessment, the restoration plan for these watersheds Creek and does have habitat that could recovery team will take into which focuses on key limiting factors. be utilized by anadromous O. mykiss, consideration all steelhead populations NMFS anticipates that this plan will there is no evidence indicating that within the ESU including the San Mateo focus on addressing the control of exotic anadromous O. mykiss currently inhabit Creek population, as well as fish that plants, the control of exotic fish species the San Onofre Creek watershed. Since may occur further south. As discussed which compete with and/or prey upon the proposed range extension addressed elsewhere in this notice, NMFS expects steelhead and other native species, and only the distribution of listed the recovery team to also evaluate the possible restoration of habitat. In anadromous O. mykiss rather than whether or not O. mykiss populations addition to this larger planning and habitat that may potentially be utilized above barriers, as well as the habitat that restoration effort, NMFS expects to work by this life history form, San Onofre supports these populations, are closely with Camp Pendleton through Creek was not specifically included in necessary for recovery. section 7 of the ESA to evaluate, and if the proposed range extension. Comment 13: One commenter urged necessary to modify, its programs for However, NMFS recognizes that formulation of a recovery plan that protecting and managing these suitable habitat may occur in restores historically occupied streams in watersheds. watersheds south of San Mateo Creek Orange and San Diego Counties. Comment 15: Camp Pendleton (e.g. San Onofre Creek) and that Response: It is premature to conclude commented that it has been a good anadromous O. mykiss historically that all historically occupied streams steward and manager of the San Mateo
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Creek watershed, which functions also be achieved in a manner that is in 1999 and 2000. The results of this principally as a migratory corridor, and compatible with the military and analysis demonstrate that all tested fish that they are implementing management national security missions of the Base. carried the mtDNA haplotype (MYS5) measures to protect this watershed and Comment 17: Camp Pendleton which is found most commonly in its associated riparian habitat. committed to fulfilling all of its steelhead from southern California. This Response: NMFS recognizes that the obligations under the ESA for the finding is consistent with the results of lower portion of San Mateo Creek which management of steelhead if further the more limited genetic analysis passes through Camp Pendleton serves genetic testing demonstrated that the O. conducted originally by DFG and upon mainly as a migration corridor. NMFS mykiss found in San Mateo Creek were which the proposed range extension also recognizes that Camp Pendleton steelhead and not hatchery trout plants. was in part based. NMFS believes it has has worked closely with the FWS to Response: NMFS is confident that used the best available information to develop and implement a riparian Camp Pendleton will fulfill its ESA make its determination, and that any management program to protect FWS- section 7 obligations to ensure that the further delay in protecting anadromous listed species that are riparian Southern California steelhead ESU is O. mykiss found south of Malibu Creek dependent. Although this riparian not jeopardized, as well as its further under the ESA is not consistent with the management program was developed for obligations under the ESA to promote agency’s obligation to protect and FWS-listed species, the program likely steelhead conservation. As discussed conserve this endangered population. provides benefits to steelhead and its elsewhere in this document, the results Comment 19: A few commenters habitat as well. As discussed previously, of additional genetic analysis (mtDNA) speculated that the O. mykiss found in NMFS expects to engage Camp conducted on 16 tissue specimens by San Mateo Creek were actually hatchery Pendleton in an ESA section 7 Dr. Jennifer Nielson demonstrated that trout planted by DFG or trout that had consultation that will evaluate the all the sampled juvenile fish had the escaped from ponds stocked by private effects of its activities, including MYS5 haplotype carried by native landowners with in-holdings in implementation of its riparian coastal O. mykiss and were not of Cleveland National Forest. management strategy for San Mateo hatchery origin. Response: As discussed elsewhere in the response to comments, the available Creek, on steelhead and its habitat. If Issue: Sufficiency of Available Data new or modified management measures mtDNA data for all fish that have been are needed to protect and conserve Comment 18: Several commenters tested to date (2 prior to NMFS’ steelhead and its habitat on Camp opposed the proposed range extension proposal and 16 after the proposal) Pendleton, they will be developed and argued that there was insufficient shows that they carried the mtDNA through this section 7 process. data to conclude that the O. mykiss in haplotype (MYS5) which is most Comment 16: Camp Pendleton raised San Mateo Creek are steelhead and part commonly found in southern California concerns about possible conflicts of the Southern California ESU. Some steelhead populations. This haplotype between steelhead protection and commenters argued that additional data has not been found in any hatchery or management on the Base and its ability needs to be collected to confirm NMFS’s domestic trout populations; thus, NMFS to carry out the Base’s training and proposal and that in the interim any concludes that the juvenile O. mykiss national security mission. final determination should be delayed. found in San Mateo Creek are derived Response: NMFS is sensitive to the Response: NMFS recognizes that the from native southern California need for Camp Pendleton to be able to proposed range extension was based on steelhead and are not the result of carry out its military and national a limited amount of information; domestic trout planting. security missions. Nevertheless, it is however, section 4(b)(1)(A) of the ESA Comment 20: One commenter important for Camp Pendleton, as a requires that NMFS make any questioned whether the O. mykiss in Federal agency, to fulfill its obligations determinations about listing solely on San Mateo Creek are part of the under the ESA and ensure that their the basis of the best available scientific Southern California ESU. operations and activities do not and commercial data. At the time of the Response: As discussed in the jeopardize the continued existence of range extension proposal, NMFS proposed range extension, NMFS Southern California steelhead. NMFS is believed it had the best available believes the available information (e.g. committed to working closely with information and that the available proximity of San Mateo Creek to nearest Camp Pendleton through section 7 of information supported a conclusion that extant populations of southern the ESA to ensure that both goals can be the juvenile O. mykiss in San Mateo California steelhead, mtDNA data met: the military and national security Creek were the progeny of anadromous demonstrating presence of a haplotype missions of Camp Pendleton and the O. mykiss that had strayed from another most common in Southern California conservation of steelhead and its stream in the Southern California steelhead populations, and otolith habitat. Camp Pendleton has steelhead ESU. In addition, NMFS microchemistry data) all points to a considerable experience dealing with believed it was important to formally conclusion that adult steelhead strayed the management of FWS-listed species recognize that the range of anadromous into San Mateo Creek from elsewhere in that occupy habitat on the Base, O. mykiss extended further south than Southern California and successfully including the development of a riparian was thought to be the case so that the spawned in 1997. As such, the O. management strategy and program for public and potentially affected parties mykiss in San Mateo Creek are progeny riparian dependent species in the San were aware that this life history form of anadromous O. mykiss (or steelhead) Mateo Creek watershed which is used occurred south of Malibu Creek, at least and should be part of the listed by steelhead. This past experience to San Mateo Creek, and so that fish population. The additional mtDNA demonstrates that the protection and south of Malibu Creek would be analysis performed by Dr. Jennifer conservation of ESA-listed species can protected under the ESA. Since NMFS Nielson is consistent with the original be achieved in a manner that is proposed the range extension for mtDNA analysis and reinforces this compatible with the military mission of anadromous O. mykiss, further genetic conclusion. the Base. NMFS is confident that the analysis has been conducted by Dr. Comment 21: One commenter protection and conservation of steelhead Jennifer Nielsen on tissues samples from questioned the validity of the Southern and its habitat on Camp Pendleton can an additional 16 juvenile fish collected California steelhead ESU as a definable
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unit, as well as the overall ESU concept steelhead population and that NMFS’ publication announcing the proposal NMFS has developed and its proposal did not adequately (65 FR 79328). The Federal Register applicability to steelhead on the west acknowledge this risk factor. document also identified NMFS’ points coast. Response: NMFS acknowledges that it of contact for futher information, and Response: NMFS disagrees with the did not explicitly discuss the Foothill directed interested parties to request commenter and believes that its ESU Corridor project, which is currently in further information or references from policy is scientifically sound and that the planning stages, as a possible threat the Southwest Region’s Assistant the west coast steelhead ESUs, as to the destruction, modification, or Regional Administrator or the identified defined, are consistent with the agency’s curtailment of steelhead habitat in San point of contact. All information upon stated policy. Mateo Creek. NMFS is well aware of which the proposed range extension NMFS has published a policy this project and has been coordinating was based was readily available on describing how it will apply the ESA with the Federal Highway request and at least one party did definition of ‘‘species’’ to anadromous Administration (FHA) as part of the request the information. salmonid species such as O. mykiss (see environmental review process which is Comment 25: One commenter 56 FR 58612, November 20, 1991). More currently ongoing for the project. NMFS believed NMFS should extend the recently, NMFS and FWS published a recognizes that the project could have public comment period to provide joint policy, which is consistent with some potential impacts on the San greater opportunity for public comment the NMFS policy, regarding the Mateo Creek watershed depending upon and review of the available information definition of DPSs (see 61 FR 4722, which project alternative is selected and supporting the proposed range February 7, 1996). The earlier policy is how the project is designed, extension. more detailed and applies specifically to constructed, operated, and mitigated. Response: The original comment Pacific salmonids, therefore it has been NMFS will continue to coordinate with period for the proposed range extension used by NMFS for all of its west coast FHA as the NEPA documentation for the was 60 days. NMFS did extend the salmonid ESU determinations, project is prepared and provide public comment period an additional 30 including those for west coast steelhead comments and recommendations as days, both to provide the public with (see 61 FR 41541 and 62 FR 43937). appropriate. Because this project has the additional opportunity to review the This policy states that one or more potential to impact anadromous O. proposed extension and develop naturally reproducing salmonid mykiss in San Mateo Creek, as well as comments, as well as to accommodate a populations will be considered distinct, the watershed itself, NMFS expects that public hearing which was held in San and, therefore, a ‘‘species’’ under the FHA will initiate an ESA section 7 Clemente, CA. ESA if they represent an ESU of the consultation with us to ensure that Comment 26: Many commenters biological species. To be considered an construction and operation of the requested that NMFS hold one or more ESU, a population must satisfy two project does not jeopardize anadromous public hearings to take public testimony criteria: (1) It must be reproductively O. mykiss and that any impacts are on the proposed range extension. isolated from other population units of minimized. Response: In response to many such the same species, and (2) it must requests, NMFS did schedule a public represent an important component of Issue: Economic Effects hearing in San Clemente, CA. This the evolutionary legacy of the biological Comment 23: One commenter hearing location was selected because it species. The first criterion, reproductive asserted that expanding the range of the was in close proximity to San Mateo isolation, need not be absolute but must listed ESU would create economic Creek which was the focus of the have been strong enough to permit burdens or impacts on local agencies, proposed range extension. The selection evolutionarily important differences to particularly in those areas where of this location resulted in a well occur in different population units. The anadromous O. mykiss do not occur in attended hearing and provided an second criterion is met if the population watersheds between Malibu Creek and opportunity for 37 individuals to contributes substantially to the San Mateo Creek. For this reason, the provide comments. To accommodate ecological or genetic diversity of the commenter argued that NMFS should this hearing, NMFS extended the public species as a whole. Guidance on how not expand the range of the ESU. comment period an additional 30 days. this policy should be applied is Response: NMFS does not believe that Revised Geographic Range of Listed contained in a NOAA Technical the range extension will cause economic Southern California Steelhead Memorandum entitled: ‘‘Definition of impacts in those watersheds where ‘Species’ under the ESA: Application to anadromous O. mykiss do not presently In August 1997, NMFS listed the Pacific Salmon’’ (Waples 1991). A more occur. In the proposed range extension, Southern California steelhead ESU as an detailed discussion of steelhead ESU NMFS made it clear that anadromous O. endangered species (62 FR 43937). boundaries and the factors NMFS mykiss were only thought to occur in Although this ESU was broadly considered in defining these ESUs, two streams south of Malibu Creek (i.e., described as occupying all coastal rivers including the Southern California San Mateo Creek and Topanga Creek), from the Santa Maria River southward steelhead ESU, is provided in the and that all other streams and to the southern extent of the species proposed and final listing watersheds had been so highly modified range, the final regulation more determinations for west coast steelhead that they no longer contained habitat specifically defined the listed (61 FR 41541; 62 FR 43937). In making suitable for supporting anadromous O. population as all naturally spawned these ESU determinations, NMFS relied mykiss. Issue: Administrative Process populations of steelhead (i.e. on genetic, ecological, life history, and Comment 24: One commenter anadromous O. mykiss), and their habitat related information. criticized NMFS for failing to make all progeny, which occupied rivers and of the data underlying its range streams from the Santa Maria River in Issue: Factors Contributing to Decline or extension proposal available for public San Luis Obispo County, CA (inclusive) Risk review. to Malibu Creek in Los Angeles County, Comment 22: One commenter Response: NMFS described all of the CA (inclusive). Although Malibu Creek asserted that the Foothill Corridor is a information supporting the proposed was identified as the southernmost ‘‘threat’’ to the San Mateo Creek range extension in the Federal Register stream supporting a persistent, naturally
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spawning population of anadromous O. carried the MYS5 haplotype which is of the fish, it is unlikely that they spent mykiss based on the best available found most commonly in southern their entire life cycle in Topanga Creek. information, NMFS acknowledged in California steelhead. Since there is no Since there is no evidence of any both the proposed (61 FR 41541) and evidence of a resident trout population stocking of rainbow trout in Topanga final listing determinations that there or recent evidence of steelhead presence Creek, it is most likely that these fish was some limited anecdotal information in San Mateo Creek (DFG, 2000; Titus et originated from some other stream that the anadromous life form may al., in press; Lang et al., 1998), NMFS within the ESU. The nearest streams occasionally occur as far south as the believes the adult steelhead which known to support steelhead are Malibu Santa Margarita River. successfully spawned in 1997 were Creek and Arroyo Sequit, both of which As described in NMFS’ December 19, strays from another watershed are located only a few miles north of 2000, proposed range extension for elsewhere in the Southern California Topanga Creek. listed Southern California steelhead (65 steelhead ESU. Based on the NMFS recognizes that habitat suitable FR 79328), new information was information collected by DFG (DFG, for anadromous O. mykiss may occur in collected and analyzed by the California 2000), the new genetic data analysis watersheds south of San Mateo Creek Department of Fish and Game (DFG) in performed by Dr. Jennifer Nielsen, and (e.g. San Onofre Creek and perhaps 1999 and 2000 (DFG 2000) that a review of all comments on the elsewhere) and that anadromous O. indicated anadromous O. mykiss proposed range extension, NMFS mykiss historically occurred further spawned and were rearing in San Mateo concludes that the O. mykiss population south than San Mateo Creek. For these Creek which is located approximately in San Mateo Creek is part of the listed reasons, and because anadromous O. 100 miles (161.3 kilometers (km)) Southern California steelhead mykiss may stray to streams south of further south than Malibu Creek which population. San Mateo Creek just as they did to San had previously been identified as the The Malibu Creek and San Mateo Mateo Creek in 1997 during years of southernmost coastal stream supporting Creek watersheds are separated by high rainfall, NMFS will consider all O. mykiss The San Mateo Creek approximately 100 miles (161.3 km). anadromous O. mykiss that are found to watershed arises in the Cleveland Therefore, inclusion of the San Mateo occur in coastal streams, including National Forest and flows in a Creek steelhead population in the estuarine habitat, between Malibu Creek southwesterly direction to the Pacific Southern California ESU raises the and San Mateo Creek or further south of Ocean just south of San Clemente in question of whether or not steelhead San Mateo Creek to be part of the listed northern San Diego County. Much of the occur or may be present in those Southern California steelhead lower portion of San Mateo Creek flows watersheds located between Malibu population unless there is evidence through the Camp Pendleton Marine Creek and San Mateo Creek. Based on indicating they are non-listed resident Corps Base. Approximately 6-7 miles information reported by Titus et al. (in forms or are derived from hatchery (9.7-11.3 km) are accessible to press), steelhead were historically rainbow trout populations. Because the anadromous O. mykiss in the mainstem reported in several watersheds between and tributaries. According to Malibu Creek and San Mateo Creek (i.e., southern boundary of anadromous O. information in Titus et al. (in press), Los Angeles River, San Gabriel River, mykiss in Southern California is likely Woelfel (1991), and DFG (2000), San Santa Ana River, and San Juan Creek), to vary over time given highly variable Mateo Creek was an important but are now extinct as a result of major and uncertain rainfall patterns and steelhead-producing stream prior to habitat modification or habitat blockage habitat conditions, NMFS is not 1950 and evidently supported a local associated with flood control, urban delineating a specific stream as the sport fishery of both juveniles and development, and other factors. Given southern boundary for the listed adults. More recently, however, Nehlsen the existing habitat conditions in these population in this final rule. Instead, the et al. (1991) classified the San Mateo highly modified river systems, NMFS final rule indicates that the listed O. Creek steelhead population as extinct. does not believe they are currently mykiss population extends from the Although this new information is suitable for steelhead utilization, and, Santa Maria River to the southern extent limited, it is the best available therefore, are highly unlikely to support of the species range. As discussed information, and it indicates that adult steelhead absent major restoration previously, however, NMFS does not steelhead entered San Mateo Creek and efforts. believe that anadromous O. mykiss successfully spawned in 1997. The Information regarding the current presently occur further south than San juvenile progeny of those spawning presence of O. mykiss in other streams Mateo Creek. If information becomes adults were observed by DFG during its between Malibu Creek and San Mateo available in the future that a persistent field investigations in the spring and Creek is lacking with the exception of a population of anadromous O. mykiss summer of 1999. More recent recent observation of fish in Topanga exists further south than San Mateo information from DFG in May 2000 Creek which is approximately 4 miles Creek, NMFS will promptly inform the suggests that O. mykiss still occupy (6.5 km) south of Malibu Creek. Titus et public by means of notification in the portions of San Mateo Creek and may al., (in press) indicated that O. mykiss Federal Register. have successfully spawned again since were observed in Topanga Creek in 1979 Status of Southern California Steelhead 1997. The limited genetic information and in the early 1990s. In April 2000, an ESU presented by DFG (DFG, 2000) suggests adult O. mykiss was reported in that the juvenile O. mykiss found in Topanga Creek. A NMFS’ biologist The Southern California steelhead 1999 have close genetic affinities to conducted a site visit and confirmed the ESU was listed as an endangered native southern California steelhead and presence and identification of two O. species in August 1997 (62 FR 43937). are not the result of domestic trout mykiss ranging from 14-20 inches (359- As discussed in the final listing planting. More recently, Dr. Jennifer 573 mm) in total length. Both fish were determination, this ESU is considered to Nielsen has completed mtDNA analysis observed in a relatively deep pool (4 ft be at a high risk of extinction based on of an additional 16 tissues samples from (1.2 meters (m))deep) located about 1 the results of NMFS’ west coast O. mykiss collected in San Mateo Creek mile (1.7 km) upstream of the steelhead status review (Busby et al., in 1999 and 2000. The results of this confluence with the ocean. Based on the 1996) and in a subsequent status update analysis indicate that all sampled fish existing habitat conditions and the size (NMFS, 1997).
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Historically, steelhead occurred as far Creek is part of the Southern California and recreational harvest. McEwan and south as northern Baja California. Titus ESU based on the available information. Jackson, 1996; and Titus et al.,(in press) et al., (in press), as cited in the final Based on the information compiled and also cited extensive loss of habitat due listing determination, concluded that all analyzed by DFG (DFG, 2000), the to water development, impassible dams, steelhead populations south of Malibu juvenile O. mykiss population found in and de-watering of portions of rivers as Creek in Los Angeles County were San Mateo Creek in 1999 appeared to be the principal reasons for the decline of extinct. Estimates of pre-1960s very small and was likely produced by steelhead in Southern California. abundance for several rivers in this ESU a limited number of adults that strayed Habitat problems resulting from water (i.e. Santa Ynez, Ventura, Santa Clara, into the watershed and spawned in development include inadequate flows, Malibu Creek) suggest that individual 1997. Given the small number of fish flow fluctuations, blockages (partial and steelhead populations numbered in the found in San Mateo Creek, the absence full), and entrainment (McEwan and thousands of individuals. Published of any other naturally reproducing Jackson, 1996). These factors for decline abundance estimates for the Ventura populations of steelhead in those are discussed in more detail in NMFS and Santa Clara Rivers, for example, streams occurring between Malibu (1996), McEwan and Jackson (1996), and ranged from 4,000-6,000 and 7,000- Creek and San Mateo Creek, and the in NMFS’ 1997 final listing 9,000 fish, respectively. At the time of extremely low abundance estimates for determination (62 FR 43937). Although NMFS’ final listing determination in all other populations within the ESU, NMFS has been working to address 1997, the total run size for several NMFS concludes that the Southern impacts to this endangered ESU through streams in the ESU (e.g., Santa Ynez, California steelhead ESU continues to sections 7 and 10 of the ESA since it Ventura River, Santa Clara River, be at a high risk of extinction. was listed in 1997, these same factors Malibu Creek) was estimated to number continue to adversely affect the small Summary of Factors Affecting the fewer than 200 individuals each (Titus steelhead populations which persist in Species et al., in press). Recent information the watersheds ranging from the Santa regarding steelhead abundance for the Section 4(a)(1) of the ESA and NMFS’ Maria River southward to the southern Santa Ynez, Ventura, and Santa Clara implementing regulations (50 CFR part extent of this life form’s range. Rivers suggests that the abundance 424) set forth procedures for listing As discussed previously, NMFS has estimates made at the time of the final species. The Secretary of Commerce decided not to delineate a specific listing determination were probably (Secretary) must determine, through the stream as the southern boundary for the high. regulatory process, if a species is listed anadromous O. mykiss population NMFS’ primary concerns about this endangered or threatened based upon in this final rule because the southern ESU at the time of listing were the any one or a combination of the boundary of this life form is likely to widespread and dramatic declines in following factors: (1) The present or vary over time due to variable and abundance relative to historical levels, threatened destruction, modification, or unstable climatic, hydrographic, and and the major reduction in the species curtailment of its habitat or range; (2) freshwater habitat conditions, and the range. Given the extremely low overutilization for commercial, ability of this life form to naturally stray abundance estimates and the associated recreational, scientific, or education from its natal streams. Nevertheless, the risk associated with demographic and purposes; (3) disease or predation; (4) currently available information genetic variability in small populations, inadequacy of existing regulatory indicates that anadromous O. mykiss do the long-term persistence or mechanisms; or (5) other natural or not occur in coastal streams south of sustainability of this ESU in the future human-made factors affecting its San Mateo Creek. Accordingly, the was a critical concern to NMFS. In continued existence. following discussion focuses only on addition, NMFS was concerned that the In conjunction with its proposed those factors affecting anadromous O. restricted spatial distribution of the listing determination for west coast mykiss within the geographic area that remaining populations placed the ESU steelhead ESUs in 1996, NMFS prepared extends from Malibu Creek southward as a whole at risk because of reduced a report summarizing the factors leading to and including San Mateo Creek. opportunities for re-colonization of to the decline of west coast steelhead, 1. The Present or Threatened streams suffering local population including the Southern California Destruction, Modification, or extinctions. NMFS concluded that the steelhead ESU. This report was entitled: Curtailment of Steelhead Habitat or principal factors responsible for the ‘‘Factors for Decline: A Supplement to Range decline of steelhead populations within the Notice of Determination for West this ESU were water diversions and Coast Steelhead’’ (NMFS, 1996). This With the exception of the recent extraction, habitat blockages and report concluded that all of the factors observations of fish in San Mateo Creek degradation, agricultural activities, and identified in section 4(a)(1) of the ESA and Topanga Creek, anadromous O. urbanization. Little new information have played a role in the decline of west mykiss populations south of Malibu regarding the abundance of steelhead in coast steelhead ESUs. The report Creek are thought to be extirpated due this ESU has been collected since specifically identified destruction and to habitat destruction or blockages NMFS’ final listing determination in modification of habitat, overutilization associated with urbanization and flood 1997, with the exception of limited data for recreational purposes, and natural control (Titus et al., in press), although collected as a result of monitoring and human-made factors as being the extensive monitoring has not been efforts in the Santa Ynez and Santa primary causes for the decline of conducted to assess their presence. For Clara Rivers. These data are not steelhead on the west coast. example, steelhead access and use of the comprehensive enough to estimate NMFS (1996) identified several Los Angeles River is currently population sizes, but they do indicate specific factors that contributed to the precluded by the presence of flood that these steelhead populations in decline of steelhead populations in the control structures throughout much of Southern California continue to be very Southern California ESU as it was its lower reach such as the concrete small. defined in the proposed and final listing lining of the river channel and the dam As discussed previously in this determinations, including: habitat at the Sepulveda Flood Control Basin. document, NMFS has concluded that blockages, water diversion and The lower reaches of the San Gabriel the O. mykiss population in San Mateo extraction, urbanization, agriculture, River are highly urbanized with the
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channel modified for flood control, and harvest was a factor contributing to the Other species observed in the San Mateo the river is impounded further decline of the Southern California Creek watershed include mosquito fish, upstream. The Santa Ana River is steelhead ESU (NMFS, 1996). According adult and juvenile green sunfish, similarly modified for flood control and to McEwan and Jackson (1996), bluegill, and largemouth bass. One flows largely consist of effluent from steelhead in most streams in Santa Channel catfish, which is a known water treatment plants except in the Barbara, Ventura, and Los Angeles predator of steelhead, was found dead rainy season. Because of these limited Counties were until the early 1990s in the upper San Mateo Creek in a flows and restricted releases from Prado subject to the most liberal angling portion of the Cleveland National Forest Dam, fish habitat is limited in the lower regulations anywhere in the State of (Lang et al., 1998). Brown trout have Santa Ana River. San Juan Creek, a California. Most streams in southern been stocked in San Mateo Creek (last much smaller stream in southern California were regulated by the general time in the mid 1980s), but they were Orange County, is also channelized for regulations of the Southern Sport not observed during the most recent flood control in its lower reach Fishing District (which includes Santa surveys (Lang et al., 1998). (approximately 2-3 miles (3.2-4.8 km)) Barbara, Ventura, Los Angeles, Orange, Mosquito fish were introduced for and other potential barriers to upstream and San Diego counties) which allowed mosquito abatement and are found in movement also exist. fishing year-round with a five-fish daily most Camp Pendleton waters. This San Mateo Creek was once thought to bag limit. The only streams with special species has taken over the niche of the be an important production area for protective regulations were the Ventura native three-spine stickleback which is steelhead in San Diego County (Nehlsen River and Malibu Creek. often an important prey item for et al., 1991; DFG, 2000). As summarized Because steelhead populations in salmonids; thus, it could possibly serve in Titus et al., (in press), steelhead southern California had declined to as a prey item for steelhead in San appear to have been most abundant in such critically low population levels by Mateo Creek. Green sunfish dominated the San Mateo Creek watershed prior to the early 1990s, the California Fish and the San Mateo Creek lagoon in the late 1950. After 1950, there are many fewer Game Commission (Commission) 1980s and early 1990’s according to observations of steelhead and none after adopted more restrictive angling Swift (1994) and were the only fish the early 1980s until fish were found regulations for some streams (Santa found in perennial pools in the upper there in 1999. For example, Woelfel Ynez River, Ventura River, Santa Clara watershed and Devil Canyon in the late (1991) found no steelhead or resident River, and Gaviota Creek) in 1994. 1980’s, suggesting that they may have trout in San Mateo Creek during surveys These more stringent regulations displaced residual steelhead during the in 1987-88. Similarly, Lang et al., (1998) included: (1) a reduction in the fishing drought period (Woelfel, 1991). In other failed to observe or capture any season from year round to the Saturday California streams (i.e., Malibu Creek steelhead during surveys in 1995, 1996, before Memorial Day through December and Carmel River) green sunfish were and 1997. The steelhead population in 31; (2) a zero bag limit; and (3) a found to prey on juvenile trout (Swift, San Mateo Creek was probably reduced requirement that anglers use artificial 1975; Greenwood, 1988; cited in by natural episodes of sediment input lures with barbless hooks. In 1996, these Woelfel, 1991), and in San Clemente from within the watershed. However, same regulations were adopted by the Reservoir on the Carmel River, green increased groundwater extraction in the Commission for the anadromous reaches sunfish outcompeted trout for benthic lower creek area since the mid-1940s of all coastal streams in southern food (Greenwood, 1988). may also have contributed to reducing California. Within the coastal area The control of exotic fish species in the ability of steelhead to use the system extending south of Malibu Creek to San the San Mateo Creek watershed, both on as they historically did (DFG, 2000; Mateo Creek, these same regulations are Camp Pendleton and in Cleveland Titus et al., in press; Lang et al., 1998). now in effect for the following streams: National Forest, is considered critical to Riparian vegetation has been lost, Topanga Creek, San Juan Creek, and San reducing impacts to steelhead in that stream channel width has increased, Mateo Creek. Given the extremely low watershed (DFG, 2000; Lang et al., and surficial flow has been reduced or numbers of juvenile steelhead that were 1998). Lang et al., (1998) recommended eliminated during most of the year. found in San Mateo Creek, and the implementation of measures to contain Accordingly, the migration corridor for possible sporadic occurrence of small exotic fish species in small lakes and immigrating adult and emigrating numbers of steelhead in other streams, ponds where recreational fishing occurs, juvenile steelhead has become recreational angling may continue to be in conjunction with efforts to control in- unreliable. Human-caused fires farther a risk to steelhead in some streams river propagation of exotics using upstream have also resulted in large south of Malibu Creek. Rotenone, electro-shocking, seining, or sediment input that has filled pools and other means in perennial pools during 3. Disease or Predation contributed sediment to the lagoon at summer low flows. the river mouth, both of which are Introductions of non-native species 4. Inadequacy of Existing Regulatory important rearing habitat for juvenile and habitat modifications have resulted Mechanisms steelhead. Although habitat conditions in increased predator populations in in the lower river may not always be numerous west coast river systems, Virtually all of the San Mateo Creek conducive to adult or juvenile passage, thereby increasing the level of predation watershed is located on Federal land Lang et al., (1998) and DFG (2000) have experienced by steelhead and other managed by the Cleveland National identified upstream spawning and salmonids (NMFS, 1996). Exotic fish Forest and the Camp Pendleton Marine rearing habitat which can be used by species that are potential predators of O. Corps Base. San Mateo Creek originates steelhead if sufficient stream flows mykiss are known to occur in San Mateo in the Cleveland National Forest and allow for adult passage. Creek and other watersheds (San Onofre flows in a southwesterly direction Creek, Santa Margarita River) on Camp through Camp Pendleton to the Pacific 2. Overutilization for Commercial, Pendleton (Lang et al., 1998). According Ocean just south of San Clemente, CA. Recreational, Scientific, or Education to Lang et al., (1998) brown bullhead Within the San Mateo Creek watershed, Purposes dominated the fish assemblage in San the majority of spawning and rearing NMFS’ review of factors affecting Mateo Creek, with both adults and habitat is upstream from Camp west coast steelhead concluded that juveniles observed in perennial pools. Pendleton within the Cleveland
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National Forest. That portion of San resulted in decreased ocean in Southern California through DFG’s Mateo Creek on Camp Pendleton serves productivity which, during more Habitat Restoration Grant Program. For primarily as migratory habitat for adults productive periods, may help offset the past 3 years NMFS has transferred and juveniles. degraded freshwater habitat conditions at least $9.0 million annually from its That portion of the San Mateo Creek (NMFS, 1996). Efforts Being Made to Pacific Coast Salmon Recovery Fund to watershed located on Cleveland Protect the Southern California the State of California for use in this National Forest land has not been Steelhead ESU Grant Program. A Memorandum of greatly altered by human activity over In conjunction with its west coast Understanding between NMFS and the the past 50 years (Woelfel, 1991). Forest steelhead status review, NMFS reviewed State of California governs the lands in the watershed have remained a wide range of protective efforts for expenditure of these funds, some of natural and undeveloped over this west coast steelhead and other which have already been allocated for period although there are a few private salmonids, ranging in scope from the habitat restoration projects within property in-holdings which have had regional strategies to local watershed the geographic range of the endangered limited development. Woelfel (1991) initiatives. NMFS has summarized some Southern California steelhead ESU. reviewed water use on these private in- of the major efforts in a document holdings and concluded that stream entitled ‘‘Steelhead Conservation Final Determination flows in the watershed were not Efforts: A Supplement to the Notice of Based on the best scientific significantly altered. According to Determination for West Coast Steelhead information available at the time of Woelfel (1991), one of the main under the Endangered Species Act’’ listing in 1997, NMFS concluded that activities of the Cleveland National (NMFS, 1996c). the Southern California steelhead ESU, Forest has been the protection of In the coastal area extending from as it was then defined (i.e., Santa Maria vegetation and water resources in its Malibu Creek southward to San Mateo River to and including Malibu Creek), various watersheds through the Creek, steelhead-specific conservation was in danger of extinction and should prevention of forest fires. In part, this efforts are currently very limited. The be listed as an endangered species (621 effort was intended to protect and FWS recently completed an assessment FR 43937). This determination was manage forest vegetation so that water of habitat distribution and restoration based on the fact that steelhead had resources were retained and water potential on the Camp Pendleton already been extirpated from much of its quality remained high. Marine Corps Base (Lang et al., 1998; historic range in southern California, the The lower portion of San Mateo Creek and DFG, 2000). Over the past 2 years, extremely low abundance of extant watershed, which flows through Camp the DFG has made several qualitative steelhead populations, and the Pendleton, may have been impacted by assessments of steelhead presence in the continued threats to the species from base activities according to Woelfel San Mateo Creek watershed and has also widespread habitat degradation and (1991). Woelfel (1991) suggested that undertaken several efforts to remove loss, water diversions and extraction, groundwater extraction to support base exotic predators from pools know to and other factors. As discussed military training operations and on-base contain steelhead which are located in previously in this document, there is no agriculture has led to stream channel that portion of the watershed which new information indicating that de-watering or reduced channel flows, occurs in the Cleveland National Forest. steelhead populations occurring in loss of riparian vegetation, and In addition, efforts are currently watersheds ranging from the Santa increased erosion, and that military underway on the development of Maria River to Malibu Creek have training operations, including restoration plans for San Mateo Creek increased in abundance since the ESU accidental fires caused by live and San Onofre Creek, both of which are was listed in 1997, and populations in ammunition use, may have contributed located on Camp Pendleton, to support this geographic area continue to be to erosion problems in the watershed. native fish species including the threatened by the same factors that The cumulative effect of groundwater unarmored three-spine stickleback, existed at the time of listing. extraction, reduction or loss of riparian arroyo chub, and steelhead. This Steelhead are almost completely vegetation, stream channel morphology restoration planning effort is expected to extirpated from coastal watersheds changes, and accelerated erosion is that focus on control of exotic plants, control south of Malibu Creek, with the steelhead may have reduced of exotic fish species which compete exception of their recent observations in opportunities for both upstream and with and/or prey upon steelhead and Topanga Creek and San Mateo Creek, downstream migration. Camp Pendleton other native species, restoration of and they occur only sporadically or in has developed a programmatic streambed pools, channels, and stream extremely low abundance in those management plan for protecting and banks, and the reintroduction of native streams. As discussed previously, most conserving riparian dependent species plants and possibly native fish species. of the coastal rivers and streams south that occur on the Base which includes Several agencies and private of Malibu Creek are highly impacted or the San Mateo Creek watershed. NMFS organizations, including the Cleveland modified and no longer support expects to work with Camp Pendleton to National Forest, Camp Pendleton steelhead. Where steelhead have evaluate the effectiveness of this plan in Marine Corps Base, FWS, DFG, Trout recently been found in San Mateo Creek, protecting steelhead. Unlimited, San Diego Trout, and the there are potential threats to their Coastal Conservancy, are participating existence from land management 5. Other Natural or Human-Made in development of this program. NMFS activities on Cleveland National Forest Factors Affecting Continued Existence strongly supports this effort and will and the Camp Pendleton Marine Corps of Steelhead continue to participate in its Base. Natural climatic conditions have development and implementation. Based on a review of the currently exacerbated the problems associated In addition to this restoration available information regarding the with degraded and altered riverine and planning which is directed specifically status of steelhead in the redefined estuarine habitats. Persistent drought at San Mateo and San Onofre Creek Southern California ESU, as well as a conditions have reduced already limited restoration, additional funding is consideration of the factors affecting spawning, rearing and migration habitat. potentially available for habitat steelhead throughout this geographic Climatic conditions appear to have restoration in other coastal watersheds area, NMFS concludes that Southern
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California steelhead ranging from the steelhead ESU and its critical habitat military operations, agriculture, grazing, Santa Maria River to the southern extent designation are the U.S. Forest Service mining, road construction, discharge of of this life form’s range continue to be (USFS) and their management and fill material, stream channelization or endangered. As was the case in NMFS’ regulatory activities in Cleveland diversion for which section 7 1997 listing determination, only the National Forest, the U.S. Marine Corps consultation has been completed, and anadromous form of O. mykiss (i.e. and its operation and management of when activities are conducted in steelhead and their progeny) ranging Camp Pendleton Marine Corps Base, accordance with any terms and from the Santa Maria River to the and the Corps of Engineers (COE) and conditions provided by NMFS in an southern extent of this life form’s range its issuance of permits under the Clean incidental take statement accompanying is listed. Water Act. a biological opinion. As discussed previously in this Sections 10(a)(1)(A) and 10(a)(1)(B) of 3. Incidental take of steelhead document, the currently available the ESA provide NMFS with authority authorized through a section 10(a)(1)(B) information indicates that anadromous to grant exceptions to the ESA’s ‘‘take’’ permit which occurs in the course of an O. mykiss or their progeny have only prohibitions. Section 10(a)(1)(A) otherwise lawful activity. been found in two watersheds located scientific research and enhancement Activities that NMFS believes could south of Malibu Creek (Topanga Creek permits may be issued to entities potentially harm Southern California and San Mateo Creek). NMFS believes (Federal and non-Federal) for scientific steelhead, and, therefore, may violate that steelhead have been extirpated from purposes or to enhance the propagation the section 9 take prohibitions of the virtually all other streams and rivers or survival of a listed species. NMFS has ESA include, but are not limited to: between Malibu Creek and San Mateo issued section 10(a)(1)(A) research/ 1. Land-use activities that adversely Creek, including the Los Angeles River, enhancement permits for listed affect steelhead habitat (e.g., agriculture, San Gabriel River, Santa Ana River, and salmonids, including Southern water extraction, recreational activities, San Juan Creek, because viable habitat California steelhead, to conduct road construction in riparian areas and is extremely limited or no longer exists activities such as trapping and tagging areas susceptible to mass wasting and as a result of habitat degradation. For and other research and monitoring surface erosion). these reasons, NMFS does not expect activities. 2. Destruction/alteration of steelhead that steelhead will be found to occupy Section 10(a)(1)(B) incidental take habitat, such as removal of woody these watersheds in the future absent permits may be issued to non-Federal debris or riparian shade canopy, major restoration efforts. Nevertheless, if entities conducting activities which may dredging, discharge of fill material, steelhead or their progeny are found to incidentally take listed species so long draining, ditching, diverting, blocking, occur in any stream or river between as the taking is incidental to, and not or altering stream channels or surface or Malibu Creek and San Mateo Creek, the purpose of, the carrying out of an ground water flow. NMFS will consider those fish to be part otherwise lawful activity. The types of 3. Discharges or dumping of toxic of the listed populations, and, therefore, activities potentially requiring a section chemicals or other pollutants (e.g., protected under the ESA. Because 10(a)(1)(B) incidental take permit sewage, oil, gasoline) into waters or anadromous O. mykiss may potentially include the operation and release of riparian areas supporting steelhead. stray to streams south of San Mateo artificially propagated fish by state or 4. Violation of discharge permits. Creek when hydrological and other privately operated and funded 5. Pesticide applications. habitat conditions are favorable, NMFS hatcheries, state regulated angling, 6. Collecting or handling of steelhead. will also consider steelhead or their academic research not receiving Federal Permits to conduct these activities are progeny that occur south of San Mateo authorization or funding, road building, available for purposes of scientific Creek to be part of the listed ESU unless grazing, and diverting water onto research or to enhance the propagation there is evidence to indicate they are private lands. or survival of the species. non-listed resident forms or derived 7. Introduction of non-native species NMFS Policies on Endangered and from hatchery rainbow trout likely to prey on steelhead or displace populations. Threatened Fish and Wildlife them from their habitat. On July 1, 1994, NMFS and FWS These lists are not exhaustive. They Prohibitions and Protective Measures published a policy in the Federal are intended to provide some examples Section 9 of the ESA prohibits certain Register (59 FR 34272) indicating that of the types of activities that might or activities that directly or indirectly the agencies would, to the maximum might not be considered by NMFS as affect endangered species. These extent practicable at the time a species constituting a prohibited take of prohibitions apply to all individuals, is listed, identify those activities that Southern California steelhead. organizations, and agencies subject to will not be considered likely to result in Questions regarding whether specific U.S. jurisdiction. Section 9 prohibitions violations of section 9, as well as activities may constitute a violation of apply automatically to endangered activities that will be considered likely the section 9 take prohibitions, and species such as Southern California to result in violations. NMFS believes general inquiries regarding prohibitions steelhead throughout its freshwater, that, based on the best available and permits, should be directed to estuarine, and marine range. information, the following actions will NMFS (see ADDRESSES). Sections 7(a)(2) and 7(a)(4) of the ESA not result in a violation of section 9 Critical Habitat require Federal agencies to consult with with regard to Southern California NMFS to ensure that activities they steelhead: Section 4(a)(3)(A) of the ESA requires authorize, fund, or conduct are not 1. Possession of steelhead which are that, to the maximum extent prudent likely to jeopardize the continued acquired lawfully by permit issued by and determinable, NMFS designate existence of a listed species or a species NMFS pursuant to section 10 of the critical habitat concurrently with a proposed for listing, or adversely ESA, or by the terms of an incidental determination that a species is modify critical habitat or proposed take statement pursuant to section 7 of endangered or threatened. In accordance critical habitat. Federal agencies and the ESA. with this requirement, NMFS actions that may be affected by the 2. Federally funded or approved designated freshwater and estuarine revision of the Southern California projects that involve activities such as critical habitat for the endangered
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Southern California steelhead ESU in Flexibility Act are not applicable to the Maria River, San Luis Obispo County, February 2000 that ranges from the listing process. In addition this final CA (inclusive) to the U.S. - Mexico Santa Maria River southward to and rule is exempt from review under Border; Upper Columbia River steelhead including Malibu Creek (65 FR 7764). Executive Order 12866. (Oncorhynchus mykiss), including the NMFS believes there is insufficient Wells Hatchery stock and all naturally Paperwork Reduction Act information at present to determine if spawned populations of steelhead (and all or some of the freshwater habitat This final rule does not contain a their progeny) in streams in the south of Malibu Creek, whether collection-of-information requirement Columbia River Basin upstream from occupied or unoccupied, is essential for for purposes of the Paperwork the Yakima River, Washington, to the the conservation of this ESU because Reduction Act. U.S. - Canada Border; Upper Columbia only two coastal watersheds south of Executive Order 13132 - Federalism River spring-run chinook salmon Malibu Creek are currently known to (Oncorhynchus tshawytscha), including support anadromous O. mykiss, In keeping with the intent of the all naturally spawned populations of including San Mateo Creek which is Administration and Congress to provide chinook salmon in Columbia River well separated from the remainder of continuing and meaningful dialogue on tributaries upstream of the Rock Island the populations in the listed ESU. Prior issues of mutual State and Federal Dam and downstream of Chief Joseph to making any determination regarding interest, NMFS has conferred with state Dam in Washington (excluding the the modification of the existing critical and local government agencies in the Okanogan River), the Columbia River habitat designation, NMFS intends to course of assessing the status of this from a straight line connecting the west complete an analysis of the full range of ESU, and considered, among other end of the Clatsop jetty (south jetty, habitat, both occupied and unoccupied, things, state and local conservation Oregon side) and the west end of the that is essential for the conservation and measures. State and local governments Peacock jetty (north jetty, Washington recovery of this ESU. NMFS expects that have expressed support for both the side) upstream to Chief Joseph Dam in this effort will be conducted in conservation of this ESU and for those Washington, and the Chiwawa River conjunction with the development of activities which affect it. NMFS staff (spring run), Methow River (spring run), biological recovery goals for this ESU by have had discussions with various Twisp River (spring run), Chewuch a NMFS appointed recovery team. government agency representatives River (spring run), White River (spring In conjunction with these efforts, regarding the status of this ESU and run), and Nason Creek (spring run) NMFS intends to work with Federal have sought working relationships with hatchery stocks (and their progeny); land managers in the San Mateo Creek them in order to promote restoration Sacramento River winter-run chinook watershed (i.e. Camp Pendleton Marine and conservation of this and other salmon (Oncorhynchus tshawytscha). ESUs. Corps Base and Cleveland National * * * * * Forest) to review and evaluate their List of Subjects in 50 CFR Part 224 [FR Doc. 02–10773 Filed 4–30–02; 8:45 am] existing land management and habitat Administrative practices, and BILLING CODE 3510–22–S protection programs to determine the procedure, Endangered and threatened extent to which they protect steelhead species, Exports, Imports, Reporting and and their habitat in the San Mateo Creek recordkeeping requirements, DEPARTMENT OF COMMERCE watershed. Transportation. National Oceanic and Atmospheric References Dated: April 18, 2002. Administration A complete list of all cited references William T. Hogarth, is available upon request (see Assistant Administrator for Fisheries, 50 CFR Part 622 ADDRESSES). National Marine Fisheries Service. [I.D. 010302D] Classification For the reasons set forth in the preamble, 50 CFR part 224 is amended RIN 0648–AL86 National Environmental Policy Act as follows: Fisheries of the Caribbean, Gulf of The 1982 amendments to the ESA, in PART 224—ENDANGERED MARINE Mexico, and South Atlantic; section 4(b)(1)(A), restrict the AND ANADROMOUS SPECIES Comprehensive Sustainable Fishery information that may be considered Act Amendment to the Fishery when assessing species for listing. Based 1. The authority citation for part 224 Management Plans of the U.S. on this limitation of criteria for a listing continues to read as follows: Caribbean decision and the opinion in Pacific Authority: 16 U.S.C. 1531-1543; and 16 Legal Foundation v. Andrus, 675 F. 2d U.S.C. 1361 et seq. AGENCY: National Marine Fisheries 825 (6th Cir. 1981), NMFS has 2. In § 224.101, paragraph (a) is Service (NMFS), National Oceanic and concluded that ESA listing actions are revised to read as follows: Atmospheric Administration (NOAA), not subject to the environmental Commerce. assessment requirements of the National § 224.101 Enumeration of endangered ACTION: Notice of agency action. Environmental Policy Act (NEPA). See marine and anadromous species. NOAA Administrative Order 216-6. * * * * * SUMMARY: NMFS has disapproved the (a) Marine and anadromous fish. Comprehensive Amendment Addressing Executive Order 12866 and Regulatory Shortnose sturgeon (Acipenser Sustainable Fishery Act Definitions and Flexibility Act brevirostrum); Totoaba (Cynoscian Other Required Provisions of the As noted in the Conference Report on macdonaldi); Snake River sockeye Magnuson-Stevens Act in the Fishery the 1982 amendments to the ESA, salmon (Oncorhynchus nerka); Southern Management Plans of the U.S. Caribbean economic impacts cannot be considered California steelhead (Oncorhynchus (Comprehensive SFA Amendment) when assessing the status of species. mykiss), which includes all naturally submitted by the Caribbean Fishery Therefore, the economic analysis spawned populations of steelhead (and Management Council (Council). Under requirements of the Regulatory their progeny) in streams from the Santa the procedures of the Magnuson-Stevens
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Fishery Conservation and Management overfishing, fails to rebuild fish period 1983 through 1999. They noted Act (Magnuson-Stevens Act), NMFS populations, and fails to address the that landings for many species had determined that the Comprehensive fishery’s bycatch problem. Hence, in its declined during that period and that SFA Amendment was inconsistent with current state, the Comprehensive there was reason to believe that some the requirements of the Sustainable Amendment is a major federal action species were either overfished or Fisheries Act of 1996 (SFA) and the significantly adversely affecting the undergoing overfishing. They believe National Environmental Policy Act environment. On the other hand, should that the assumption that the current (NEPA). NMFS choose to revise the levels of harvest are sustainable is FOR FURTHER INFORMATION CONTACT: Comprehensive Amendment so as to incorrect and would continue Peter Eldridge, telephone: 727–570– comply with the SFA, it would be a overfishing as well as prevent major federal action significantly 5305; fax: 727–570–5583; e-mail: rebuilding of overfished stocks. Further, [email protected]. benefitting the human environment. Either, way, NMFS must develop an they recommended that average SUPPLEMENTARY INFORMATION: The SFA EIS.’’ landings developed from either a 4–year requires NMFS and the Councils to Response: NMFS does not completely or 8–year time period would provide comply with new overfishing, endorse all aspects of the comment. better results. rebuilding, and bycatch provisions. Nonetheless, the comment highlights Response: Due to the data-poor nature Fishery Management Plans (FMPs) are the importance of the Amendment and of fisheries in the Caribbean, it is not required to assess and specify the is persuasive that additional alternatives clear which series of landings data present and probable future condition should be considered to produce a would provide the best SFA proxies. of, and the maximum sustainable yield better document. NMFS, working with Despite this, it is reasonable to consider and optimum yield from each fishery. the Council, intends to develop an EIS alternative series of landings, and this FMPs must assess and satisfy the nature on the above issues and incorporate the will be done in the revised Amendment. and extent of scientific data, which is findings of the EIS into a revised needed for effective implementation of Comprehensive SFA Amendment that Comment 5: Commenters noted that the plan. Also, the SFA requires fishery will address the concerns noted in the Comprehensive SFA Amendment managers to establish a standardized public comments. did not contain regulatory measures that reporting methodology to assess the Comment 2: Two environmental would immediately address overfishing amount and type of bycatch occurring in organizations noted that the SFA or overfished species. They stated that fisheries. Conservation and management mandates that fishery managers the Amendment should have and cited measures shall, to the extent practicable, ≥establish a standardized reporting this as a deficiency. methodology to assess the amount and minimize bycatch and, to the extent Response: Upon consideration of the type of bycatch occurring in the bycatch cannot be avoided, minimize public comments received, NMFS fishery.≥ The national standard the mortality of such bycatch. believes that it would be appropriate to The Council subsequently developed guidelines also require that ‘‘[a] review and submitted a Comprehensive SFA and, where necessary, improvement of consider regulatory measures, including Amendment that addressed SFA data collection methods, data sources, rebuilding schedules, in the revised requirements for Caribbean FMPs. On and application of data must be initiated Amendment that would address January 25, 2002, NMFS published a for each fishery to determine the overfishing and overfished species. It notice of availability (NOA) of the amount, type, disposition, and other should be noted that Amendment 2 to Comprehensive SFA Amendment to the characteristics of bycatch and bycatch the Queen Conch FMP, currently under Caribbean FMPs and requested public mortality in each fishery.’’ The development, would prohibit the comments through March 26, 2002 (67 organizations recommended that the possession and harvest of queen conch FR 3679). NMFS disapprove this aspect of the in the EEZ until this resource is rebuilt. On April 25, 2002, after considering Comprehensive SFA Amendment. Authority: 16 U.S.C. 1801 et seq. extensive comments received during the Response: NMFS agrees. Bycatch public comment period for the reporting will be addressed in the Dated: April 25, 2002. amendment, NMFS disapproved the revised Amendment. William T. Hogarth, Caribbean Comprehensive SFA Comment 3: One environmental Assistant Administrator for Fisheries, Amendment primarily because NMFS organization recommended that National Marine Fisheries Service. believes that an environmental impact commercial landings in the U.S. Virgin [FR Doc. 02–10692 Filed 4–30–02; 8:45 am] Islands be reported by species rather statement (EIS) should be developed BILLING CODE 3510–22–S that provides a more comprehensive set than gear. Further, such landings should of alternatives for SFA parameters, be reported similar to those in Puerto rebuilding schedules, and bycatch Rico. reporting standards. A summary of Response: NMFS agrees that comments received and responses is commercial landings, wherever given below. possible, should be reported by species or species groups, but notes that this Comments and Responses could require additional resources. This Three environmental organizations, issue will be addressed in the revised 60 individual commenters and one Amendment. petition with 548 individuals listed Comment 4: All commenters objected provided a similar set of comments on to the way that the reef fish SFA the Comprehensive SFA Amendment. parameters (maximum sustainable yield, Comment 1: One environmental optimum yield, minimum stock size organization stated, ‘‘In its current state, threshold, and maximum fishing the Comprehensive Amendment mortality threshold) were developed by violates the SFA, fails to prevent using only the average landings for the
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DEPARTMENT OF COMMERCE the Federal Groundfish Fisheries Off January 8, 2002, emergency interim rule Alaska (SEIS), including the 2001 did not explain that the regulation National Oceanic and Atmospheric biological opinion and regulatory excludes the SCA waters from the Atka Administration impact review, and the Environmental mackerel critical habitat closures in the Assessment (EA) for the Total Allowable Bering Sea subarea. 50 CFR Part 679 Catch for the Year 2002 Alaska The language regarding the nontrawl [Docket No. 011218304-2062-02; I. D. Groundfish Fisheries may be obtained Pacific cod fishing season is corrected 121701A] from the same address. The SEIS and and expanded to include the description EA are also available on the NMFS of the seasons consistent with the RIN 0648-AP69 Alaska Region home page at http:// regulatory text at § 679.23. This www.fakr.noaa.gov. expanded description was erroneously Fisheries of the Exclusive Economic omitted from the preamble. FOR FURTHER INFORMATION CONTACT: Zone Off Alaska; Steller Sea Lion The language describing the State of Melanie Brown, NMFS, 907–586–7228 Protection Measures and 2002 Harvest Alaska restrictions around rookeries is or e-mail at [email protected]. Specifications and Associated corrected to clarify that the State Management Measures for the SUPPLEMENTARY INFORMATION: The restricts only commercial fishing around Groundfish Fisheries off Alaska; emergency interim rule published these rookeries, rather than the transit of Amendment and Correction January 8, 2002 (67 FR 956), implements vessels. Steller sea lion protection measures and AGENCY: The heading on Table 5 for the ‘‘A National Marine Fisheries final 2002 harvest specifications for the Service (NMFS), National Oceanic and season’’ was erroneously printed above groundfish fisheries of the Bering Sea only the ‘‘A DFA (40% of annual DFA)’’ Atmospheric Administration (NOAA), and Aleutian Islands management area Commerce. column heading. The ‘‘A season’’ (BSAI) and the Gulf of Alaska (GOA). As column heading should also appear ACTION: Emergency interim rule; published, the final rule inadvertently above the ‘‘SCA’’ column heading and is amendment, correction, and request for contained errors in the preamble and extended over this column by this comments. regulatory text. This document corrects correction. the preamble and amends and revises SUMMARY: This document amends and The year in the title to Table 7 reads corrects a January 8, 2002, emergency regulatory text and tables. ‘‘2001’’ and is corrected to read ‘‘2002’’. interim rule implementing Steller sea Corrections to the Preamble Footnote 2 to Table 7 has a typographical error that is also corrected lion protection measures and 2002 This document corrects the preamble harvest specifications for the Alaska with this action. to clarify the definition of the harvest Table 9 included a footnote 7 stating groundfish fisheries by making limit area (HLA) for the Atka mackerel corrections to the preamble and that unused halibut PSC for Pacific cod platoon fisheries and to clarify the vessels using nontrawl gear would be regulatory text. Preamble corrections are geographical extent of the Atka needed to accurately describe the available in the following season. The mackerel directed fishing restrictions in Council and NMFS intend that no regulatory text and to correct Bering Sea critical habitat areas. First, typographical errors. Regulatory halibut PSC should be available from NMFS notes that the definition of the June 10 through August 15 because of amendments and revisions are needed HLA at § 679.2 includes critical habitat to clarify the intent of requirements and high halibut bycatch rates at this time of around Tanaga Island/Bumpy Point the year. Should this emergency interim to correct cross references. ° extending west of 178 W. long., even rule be extended, unused portions of DATES: Effective May 1, 2002, except for ° though the site is located east of 178 W. halibut PSC may be available during the the correction of § 679.7(a)(18), the long. The preamble is corrected to following season after August 15. suspension of § 679.28(f)(3)(ii), and the include within the HLA these waters of Table 12 did not indicate the full A correction of § 679.28(f)(3)(viii), which Tanaga Island/Bumpy Point critical season allocation in the SCA for will be effective 1200 hours A.l.t. on habitat. cooperative sector vessels equal to or June 10, 2002, through July 8, 2002, and In addition, Atka mackerel directed less than 99 ft (30.2 m) length overall the suspension of § 679.7(f)(8), the fishing closure east of 178° W long. was (LOA). This document corrects the addition of § 679.7(f)(16), the erroneously described as ‘‘west’’ of 178° amounts for all cooperative sector suspension of § 679.28(f)(3)(iv), the W. long. in the preamble to the vessels for the A season inside the SCA. addition of § 679.28(f)(3)(ix), the emergency interim rule. This error is The footnote to Table 24 did not suspension of § 679.50(c)(4)(vi)(B), and corrected by this action. accurately describe the time period of the addition of § 679.50(c)(4)(vi)(C), NMFS further notes that § 679.22 no apportionment for Pacific halibut which will be effective May 1, 2002 imposes Atka mackerel directed fishing prohibited species catch limits. The through July 8, 2002. restrictions in the Bering Sea critical footnote describes the time period as the Comments must be received on or habitat areas only for those critical ‘‘4th quarter’’ which is the period from before 5 p.m., A.l.t., May 31, 2002. habitat waters within 20 nautical miles September 1 through October 1. No ADDRESSES: Comments must be sent to (nm) of listed rookeries and haulouts apportionment for the shallow-water Sue Salveson, Assistant Regional located in the Bering Sea subarea. These and deep-water fishery complexes is Administrator, Sustainable Fisheries corrections will make the preamble available during October 1 through Division, Alaska Region, NMFS, P.O. language consistent with the regulatory December 31. This document corrects Box 21668, Juneau, AK 99802, Attn: text at § 679.22. A large portion of the the footnote to describe the correct Lori Gravel-Durall, or delivered to room Steller Sea Lion Conservation area apportionment period. 401 of the Federal Building, 709 West (SCA) also is listed as critical habitat in 9th Street, Juneau, AK. Comments will the Bering Sea under 50 CFR 226.202, Corrections and Amendments to the not be accepted if submitted via e-mail but this was not intended by the Regulatory Text in the Emergency or Internet. Copies of the Supplemental Council or NMFS to be included in the Interim Rule Environmental Impact Statement on Atka mackerel directed fishing critical In § 679.2, the definition of the Steller Sea Lion Protection Measures in habitat closures. The preamble in the harvest limit area (HLA) is corrected to
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include the sites located west of 177° applicable to reallocation under this Because a number of vessels with 57.00’ W. long. The coordinate in the paragraph. Paragraph (a)(7)(ii)(E) Pacific cod Federal Fishery Permit definition was intended to include all of contains an erroneous reference to endorsements may also participate in Tanaga Island/Bumpy Point. The Pacific cod non-trawl gear allocations, other commercial fisheries, including definition, which was intended to which is not applicable to trawl gear crab, salmon, or lingcod, the correction include all of Tanaga Island/Bumpy reallocations. This action corrects these includes the notification of when the Point, did not take into account the reallocation paragraphs to reference vessel will begin operation, consistent eastern boundary coordinate for Tanaga only those paragraphs establishing with the prohibition on operation Island/Bumpy Point. applicable trawl allocations. without a VMS under § 679.7(a)(18). A Section 679.7(a) is corrected to clarify In § 679.22(a)(11)(v), an ‘‘and’’ instead vessel may not operate in a BSAI or the vessel monitoring system (VMS) of an ‘‘or’’ was erroneously used in GOA reporting area until the requirement and fishing prohibition. listing the gear types subject to the transmission is confirmed, consistent The reference to gear types is removed regulation. The closure implemented by with § 679.7(a)(18). Section because the information exists in § § 679.22(a)(11)(v) applies to vessels 679.28(f)(3)(iv) is suspended and § 679.4. The prohibition is corrected to using any one of the gear types listed 679.28(f)(3)(ix) is added to clarify that a include the operation of a vessel rather rather than all of the gear types listed. vessel is required to stop fishing when than conducting directed fishing for This error is corrected by revising this informed only by an authorized officer groundfish or IFQ halibut to ensure that paragraph. that position reports are not being all vessels endorsed for the Pacific cod, Section 679.22(b)(3)(iii) is revised to received, rather than being informed by pollock, or Atka mackerel directed specify those vessels that are prohibited NMFS staff. fisheries are subject to the prohibition, from directed fishing for Pacific cod in Section 679.50(c)(4)(vi)(B) is amended even while harvesting fish of other the Pacific cod no fishing zones. The to clarify that the observer requirement species such as crab, salmon, or lingcod. closure applies to all vessels in these applies to motherships and catcher/ This also ensures that a vessel zones within the exclusive economic processors participating in a directed unloading fish or processing fish in port zone and to vessels that have been CDQ fishery. The paragraph as will also be required to operate its VMS. issued Federal fishery permits and are promulgated in the January 8, 2002, The prohibition is also made applicable participating in the State of Alaska emergency interim rule applies to all in the BSAI and GOA reporting area by parallel groundfish fisheries. However, motherships and catcher/processors this correction, so that State of Alaska vessels with Federal fisheries permits instead of to only those processor waters are included in the area covered participating in the State-managed vessels participating in the CDQ by this prohibition as intended by Pacific cod fishery are not prohibited program. NMFS and the Council. A vessel from fishing in the Pacific cod no In Table 23 of this part, footnote 11 endorsed for the Pacific cod, Atka fishing zones in the GOA. The Steller describing the Pacific cod trawling mackerel, or pollock fishery must sea lion protection measures were not closures during the Atka mackerel HLA operate VMS when the fishery the intended to apply to the State-managed directed fishery does not accurately vessel is endorsed for is open so that Pacific cod fishery, and this correction describe the waters where the closures NMFS is able to monitor compliance clarifies the application of the Pacific apply. The 20-nm closure around with the closures in waters, including cod no fishing zones. Gramps Rock was intended by the the State of Alaska waters, around Section 679.28(f)(3) is amended to Council and NMFS only for waters west haulouts, rookeries, and foraging areas. clarify the VMS reporting and of 178° W. long. The footnote is Section 679.7(f) is amended to clarify transmission confirmation requirements corrected by this action. Also, the table the prohibition against discard of Pacific for vessels that will initially enter a heading on the last page of Table 23 is cod for participants in the IFQ halibut fishery that requires VMS and for removed as it contains no data. Only the fishery. If a vessel is registered under § vessels that may replace a VMS. remaining text of footnote 5 though 679.4 to directed fish for Pacific cod, Paragraph (f)(3)(ii) is suspended starting footnote 11 should be carried over. then it is required to retain all catches June 10, 2002, because requirements in of Pacific cod if the directed fishery is this paragraph are clarified and Corrections open, and up to the maximum contained in § 679.28(f)(3)(viii). As part In the emergency interim rule retainable amount (MRA) if the directed of the reasonable and prudent measures implementing Steller sea lion protection Pacific cod fishery is closed. If a vessel in the 2001 Biological Opinion, NMFS measures and final 2002 harvest used in the IFQ halibut fishery is not is required to monitor the location of specifications for the groundfish registered for the Pacific cod directed vessels with Federal Fisheries permit fisheries of the BSAI and the GOA, fishery, it is required to discard Pacific endorsements for the Atka mackerel, published on January 8, 2002 (67 FR cod once the amount of Pacific cod pollock, and Pacific cod directed 956, FR Doc. 01-32251), corrections are harvested has reached the MRA fisheries. The vessel owner is required made as follows: specified at § 679.20. This paragraph is to provide information specified in § 1. On page 961, column 1, in the last amended to state that vessels not 679.28(f)(3)(viii) by FAX and receive two lines of paragraph 3, (h) is corrected registered for the Pacific cod directed confirmation that the VMS transmission to read as follows: ‘‘... and (h) no fishery are not prohibited from is being received before operating his or directed fishing with trawl gear for Atka discarding Pacific cod. her vessel during an open directed mackerel in critical habitat east of 178° Section 679.20 (a)(7)(ii)(D) and fishery for which the vessel is endorsed. W. long.’’ (a)(7)(ii)(E) describe methods of For vessels that are initially entering a 2. On page 961, column 2, in the reallocating unused Pacific cod trawl fishery that requires VMS, the vessel continuation of paragraph 4, the last two allocations and contain incorrect or owner will be required to receive lines are corrected to read as follows: incomplete allocation references. confirmation of transmission 72 hours ‘‘... and (f) closure of all BS subarea Paragraph (a)(7)(ii)(D) did not include a before leaving port to allow time to critical habitat within 20 nm of reference to paragraph (a)(7)(iii)(D) make repairs or to ensure that the rookeries and haulouts to directed which establishes the seasonal transmission is being received before fishing for Atka mackerel with trawl apportionments and gear allocations the vessel enters the fishing grounds. gear.’’
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3. On page 965, column 1, in the first long. to provide maximum protection to to read as follows: ‘‘The State-managed complete paragraph, the second Steller sea lions and because Atka and State parallel fisheries through sentence is corrected to read as follows: mackerel is readily available in waters emergency orders and regulations ‘‘For purposes of Atka mackerel outside of critical habitat.’’ prohibit commercial fishing in waters platooning and for restriction of 5. On page 965, column 3, paragraph within 3 nm of all of the rookeries listed directed fishing for Pacific cod with 5, the fourth sentence is corrected to on Table 21.’’ read as follows: ‘‘The B season for trawl gear during the Atka mackerel 7. On page 968, column 1, under the vessels equal to or greater than 60 ft HLA directed fishery, the definition of Bering Sea Closures section, paragraph the HLA is waters located west of 178° (18.3 m) LOA using hook-and-line gear 1, the first sentence is corrected to read long. within 20 nm seaward of Steller and vessels using jig gear in the BSAI as follows: ‘‘1. Directed fishing for Atka sea lion sites listed in Table 24 of 50 begins at 1200 hours, A.l.t., on June 10 mackerel by federally permitted vessels CFR part 679 and located west of and ends on December 31. The B season using trawl gear is prohibited in critical 177°57.00 W. long.’’ for vessels using hook-and-line, pot, or habitat within 20 nm of rookeries and 4. On page 965, column 1, in the jig gear in the GOA and vessels equal to haulouts in the Bering Sea subarea.’’ second complete paragraph, the first or greater than 60 ft (18.3 m) LOA using sentence is corrected to read as follows: pot gear in the BSAI begins at 1200 8. On page 974, Table 5 is corrected ‘‘Atka mackerel directed fishing is hours, A.l.t., on September 1 and ends so that the ‘‘A season’’ heading appears prohibited in the Seguam foraging area on December 31.’’ above both the ‘‘A DFA’’ and the ‘‘SCA and critical habitat surrounding 6. On page 967, column 2, the first limit’’ columns to read as follows: rookeries and haulouts, east of 178° W. paragraph, the last sentence is corrected BILLING CODE 3510–22–S
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BILLING CODE 3510–22–C
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9. On pages 975 and 976, in the title regard to Steller sea lion protection. comment are not required for this to Table 7, the year ‘‘2001’’ is corrected Potential adverse impacts on marine amendment to the emergency interim to read ‘‘2002’’. mammals resulting from fishing rule by 5 U.S.C. 553 or any other law, 10. On page 976, Table 7, the last activities conducted under the the analytical requirements of the sentence in footnote 2 is corrected to emergency interim rule (67 FR 956, Regulatory Flexibility Act, 5 U.S.C. 601 read as follows: ‘‘Any unused portion of January 8, 2002) are discussed in the EA et seq. are not applicable. Therefore, a a seasonal Pacific cod allowance will be and final SEIS. The corrections and regulatory flexibility analysis has not reapportioned to the next seasonal amendments in this action are within been prepared. allowance.’’ the scope of these NEPA analyses. 11. On page 978, Table 9, footnote 7 A formal section 7 consultation under List of Subjects in 50 CFR Part 679 is corrected to read as follows: ‘‘7With the ESA was initiated for the emergency Alaska, Fisheries, Recordkeeping and the exception of the nontrawl Pacific interim rule (67 FR 956, January 8, reporting requirements. cod directed fishery, any unused halibut 2002) under the FMPs for the Dated: April 25, 2002. PSC apportionment may be added to the groundfish fisheries of the BSAI and the William T. Hogarth, following season’s apportionment. Any GOA. In a biological opinion dated unused halibut PSC apportioned to the October 17, 2001, NMFS determined Assistant Administrator for Fisheries, National Marine Fisheries Service. nontrawl Pacific cod directed fishery that fishing activities conducted under during the January 1 through June 10 the Steller sea lion protection measures For reasons set out in the preamble, time period will not be available until implemented by the emergency interim 50 CFR part 679 is amended as follows: after August 15.’’ rule (67 FR 956, January 8, 2002) are not PART 679--FISHERIES OF THE 12. On page 980, Table 12, in the third likely to jeopardize the continued EXCLUSIVE ECONOMIC ZONE OFF column of the table under the heading existence of any endangered or ALASKA the A season inside SCA in the first line, threatened species or result in the ‘‘161,601’’ is corrected to read destruction or adverse modification of 1. The authority citation for part 679 ‘‘154,025’’ and in the second line, critical habitat. The determination based continues to read as follows: ‘‘17,675’’ is corrected to read ‘‘25,250’’. on biological opinions dated December 13. On page 992, Table 24, the Authority: 16 U.S.C. 773 et seq.; 1801 et 22, 1999, and December 23, 1999, was seq.; 3631 et seq.; Title II of Division C, Pub. footnote is corrected to read as follows: extended for 1 year from January 1, L. 105-277; Sec. 3027, Pub. L. 106-31; 113 ‘‘No separate apportionment to shallow- 2002, to January 1, 2003, for purposes of Stat. 57; 16 U.S.C. 1540(f); and Sec. 209, Pub. water and deep-water fishery complexes the harvest specifications implemented L. 106-554. during October 1 to December 31.’’ by the January 8, 2002, emergency § 679.2 [Corrected] Classification interim rule. These amendments and corrections are consistent with the 2. On page 999, in the second column, The Administrator, Alaska Region, objectives for Steller sea lion protection in § 679.2, in the definition for Harvest NMFS (Regional Administrator), has measures implemented in 2001 under limit area, the last line, the coordinate determined that this amendment is section 209(c)(6) of Pub. L. 106-554, the ‘‘177.58° W. long.’’ is corrected to read necessary for the conservation and ESA, and other applicable laws, and ‘‘177°57.00′ W. long.’’. management of the groundfish fisheries will not affect listed species or critical 3. On page 999, beginning in the third of the BSAI and GOA. The Regional habitat in any manner not previously column, in § 679.7, paragraph (a)(18) is Administrator also has determined that evaluated in prior consultations. corrected to read as follows: this amendment is consistent with the By this action, NMFS is correcting the Magnuson-Stevens Fishery 2002 harvest specifications and Steller § 679.7 Prohibitions. Conservation and Management Act and sea lion protection measures which * * * * * other applicable laws. No relevant have been in effect since January 1, (a) * * * Federal rules exist that may duplicate, 2002, for the BSAI and GOA. These (18) Pollock, Pacific cod, and Atka overlap, or conflict with this action. amendments and corrections clarify to mackerel directed fishing and VMS This amendment has been determined whom and where the regulations apply (applicable 1200 hours A.l.t., June 10, to be not significant for purposes of and eliminate inconsistencies in 2002, through July 8, 2002). Operate a Executive Order 12866. regulations for activities currently being vessel which is authorized under § Consistent with the National conducted pursuant to emergency 679.4 (b)(5)(v) to participate in the Atka Environmental Policy Act (NEPA), regulations, published on January 8, mackerel, Pacific cod or pollock NMFS prepared an EA for the total 2002, (67 FR 956). A delay in directed fisheries in any BSAI or GOA allowable catch specifications portion of implementing these corrections and reporting areas, unless the vessel carries the January 8, 2002, emergency interim amendments would continue to impose an operable NMFS-approved Vessel rule. NMFS also prepared an SEIS for inconsistent regulatory requirements on Monitoring System (VMS) transmitter the Steller sea lion protection measures; regulated fishermen. Additionally, if and complies with the requirements in a notice of availability of the draft SEIS prior notice and an opportunity for § 679.28(f). was published in the Federal Register public comment was afforded, the * * * * * on August 31, 2001 (66 FR 45984). underlying rule being amended and 4. In § 679.7, paragraph (f)(8) is Comments were received and responded corrected by this rule might no longer be suspended May 1, 2002, through July 8, to in the final SEIS and the final effective and then the changes 2002, and paragraph (f)(16) is added document was issued November 23, implemented by this emergency interim May 1, 2002, through July 8, 2002, to 2001 (66 FR 58734). The final SEIS and rule might be moot. Accordingly, good read as follows: EA are available from NMFS (see cause exists to forego public notice and ADDRESSES). Based on a comparison of comment pursuant to 5 U.S.C. 553(b)(3). § 679.7 Prohibitions. the effects of the other alternatives in For the same reasons, good cause exists * * * * * the SEIS, NMFS determined that this to waive the delay in the effective date (f) * * * action meets the requirements of the pursuant to 5 U.S.C. 553(d)(3). Because (16) (Applicable May 1, 2002, through Endangered Species Act (ESA) with prior notice and opportunity for public July 8, 2002) Discard Pacific cod or
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rockfish that are taken when IFQ halibut line, or pot gear is prohibited within the call NMFS Enforcement Division at 907- or IFQ sablefish are on board, unless: Pacific cod no fishing zones around 586-7225 between the hours of 0800 (i) Pacific cod or rockfish are required selected sites. These sites and gear types hours, A.l.t., and 1630 hours, A.l.t. to to be discarded under § 679.20, are listed on Table 23 of this part and receive confirmation that the VMS (ii) the vessel is not registered under are identifiable by ‘‘BS’’ in column 2. transmissions are being received. § 679.4 for the Pacific cod directed * * * * * (B) For all other vessels endorsed fishery and the amount of Pacific cod (b) * * * under § 679.4(b)(5)(v) and installing a harvested has reached the maximum (3) * * * VMS: retainable amount under § 679.20(e), or (iii) Pacific cod closures. Directed (1) If the vessel is switching its VMS (iii) in waters within the State of fishing for Pacific cod by federally transmitters, provide to NMFS Alaska, Pacific cod or rockfish are permitted vessels using trawl, hook-and- Enforcement Division by FAX the required to be discarded by laws of the line, or pot gear in the federally following information: the VMS State of Alaska. managed Pacific cod or State of Alaska transmitter ID, and the ID of the vessel parallel groundfish fisheries, as defined * * * * * on which the VMS will be used. 5. In § 679.20, paragraphs (a)(7)(ii)(D) in the Alaska Administrative Code (5 AAC 28.087(c), January 3, 2002), is (2) Activate the VMS transmitter and and (a)(7)(ii)(E) are revised to read as call NMFS Enforcement Division at 907- follows: prohibited within Pacific cod no fishing zones around selected sites. These sites 586-7225 between the hours of 0800 § 679.20 General limitations. and gear types are listed in Table 23 of hours, A.l.t., and 1630 hours, A.l.t. to * * * * * this part and are identifiable by ‘‘GOA’’ receive confirmation that the VMS (a) * * * in column 2. transmissions are being received. (7) * * * * * * * * (C) No vessel required to carry a VMS (ii) * * * 7. In § 679.28, paragraph (f)(3)(ii) is pursuant to § 679.7(a)(18) may operate (D) Reallocation within the trawl suspended 1200 hours A.l.t., June 10, in a BSAI or GOA reporting area until sector (applicable through July 8, 2002). 2002, through July 8, 2002, paragraph the vessel has received confirmation If, during a fishing season, the Regional (f)(3)(iv) is suspended May 1, 2002, from NMFS that the VMS transmissions Administrator determines that either through July 8, 2002, and paragraph are being received. catcher vessels using trawl gear or (f)(3)(ix) is added effective May 1, 2002, * * * * * catcher/processors using trawl gear will through July 8, 2002, to read as follows: 9. In § 679.50, paragraph (c)(4)(vi)(B) not be able to harvest the entire amount is suspended effective May 1, 2002, of Pacific cod in the BSAI allocation to § 679.28 Equipment and operational through July 8, 2002, and paragraph those vessels under paragraphs (a)(7)(i), requirements. (c)(4)(vi)(C) is added effective May 1, (a)(7)(ii)(C) or (a)(7)(iii)(D) of this * * * * * 2002, through July 8, 2002, to read as section, he/she may reallocate the (f) * * * follows: projected unused amount of Pacific cod (3) * * * (ix) (Effective May 1, 2002, through to vessels using trawl gear in the other § 679.50 Groundfish Observer Program trawl component through notification in July 8, 2002) Stop fishing immediately applicable through December 31, 2002. the Federal Register before any if informed by an authorized officer that NMFS is not receiving position reports * * * * * reallocation to vessels using other gear (c) * * * type(s). from the VMS transmitter. (E) Unused seasonal allowance for 8. On page 1004, in the first column, (4) * * * trawl (applicable through July 8, 2002). in § 679.28, paragraph (f)(3)(viii) is (vi) * * * Any unused portion of a seasonal corrected to read as follows: (C) (Effective May 1, 2002, through allowance of Pacific cod for vessels § 679.28 Equipment and operational July 8, 2002) A mothership or catcher/ using trawl gear under paragraphs requirements. processor vessel engaged in fishing with (a)(7)(ii)(D) and (a)(7)(iii)(D) of this * * * * * trawl gear in a directed CDQ fishery for section may be reapportioned by the (f) * * * other than pollock CDQ must carry at Regional Administrator, through (3) * * * least two CDQ observers as described at notification in the Federal Register, to (viii) (Applicable 1200 hours A.l.t., paragraphs (h)(1)(i)(D) and (E) of this the subsequent seasonal allocations for June 10, 2002, through July 8, 2002) section aboard the vessel, at least one of vessels using trawl gear. Reporting and transmission whom must be certified as a lead CDQ * * * * * confirmation requirements for vessels observer. 6. In § 679.22, paragraphs (a)(11)(v) endorsed under § 679.4(b)(5)(v) and * * * * * and (b)(3)(iii) are revised to read as installing a VMS: 10. In Table 23 to CFR part 679, (A) For vessels initially entering a follows: footnote 11 is revised. The revised page fishery which requires VMS: containing the amendment to Table 23, § 679.22 Closures. (1) Provide to NMFS Enforcement footnote 11, reads as follows: (a) * * * Division by FAX the VMS transmitter(s) (11) * * * ID and the vessel ID on which the Table 23 to 50 CFR Part 679 Steller (v) Pacific cod closures. Directed VMS(s) are used. Sea Lion Protection Areas Pacific Cod fishing for Pacific cod by federally (2) At least 72 hours before leaving Fisheries Restrictions permitted vessels using trawl, hook-and- port, activate the VMS transmitter and * * * * *
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* * * * * [FR Doc. 02–10693 Filed 4–30–02; 8:45 am] BILLING CODE 3510–22–C
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Proposed Rules Federal Register Vol. 67, No. 84
Wednesday, May 1, 2002
This section of the FEDERAL REGISTER used for demonstrating transportation rule and proceed with a final contains notices to the public of the proposed conformity with the Salt Lake County rulemaking action. However, should the issuance of rules and regulations. The PM10 attainment demonstration element State substantially change the proposed purpose of these notices is to give interested of the SIP. SIP revision, before the Governor persons an opportunity to participate in the submits the final version to us, we will rule making prior to the adoption of the final DATES: Written comments must be rules. received on or before May 31, 2002. re-propose and again solicit public ADDRESSES: Written comments may be comment on the State amended SIP mailed to: Richard R. Long, Director, Air revision before we take final rulemaking ENVIRONMENTAL PROTECTION and Radiation Program, Mailcode action. For further information AGENCY 8P–AR, United States Environmental regarding parallel processing, please see Protection Agency, Region VIII, 999 40 CFR part 51, Appendix V, section 40 CFR Part 52 18th Street, Suite 300, Denver, Colorado 2.3.1. In this action, we are proposing [UT–001–0042; FRL–7203–8] 80202–2466 Copies of the documents relevant to approval and soliciting public comment Approval and Promulgation of Air this action are available for public regarding the Governor’s March 15, Quality Implementation Plans; State of inspection during normal business 2002, submittal of Utah’s proposed new Utah; Salt Lake County—Trading of hours at the following offices: United Rule R307–310 that will allow certain Emission Budgets for PM10 States Environmental Protection trading of emission budgets for the Transportation Conformity Agency, Region VIII, Air and Radiation purposes of transportation conformity Program, 999 18th Street, Suite 300, for PM10 for Salt Lake County. AGENCY: Environmental Protection Denver, Colorado 80202–2466. II. What is the State’s Process to Submit Agency (EPA). Copies of the State documents these Materials to EPA? ACTION: Proposed rule. relevant to this action are available for public inspection at: Utah Department Section 110(k) of the CAA addresses SUMMARY: On March 15, 2002, the our actions on submissions of revisions Governor of Utah submitted a proposed of Environmental Quality, Division of Air Quality, 150 North 1950 West, Salt to a SIP. The CAA requires States to revision to the Utah State observe certain procedural requirements Implementation Plan (SIP) that would Lake City, Utah 84114–4820. FOR FURTHER INFORMATION CONTACT: Tim in developing SIP revisions for allow trading from the motor vehicle submittal to us. Section 110(a)(2) of the emissions budget for primary Particulate Russ, Air and Radiation Program, Mailcode 8P–AR, United States CAA requires that each SIP revision be Matter of 10 microns or less in diameter adopted after reasonable notice and (PM10) to the motor vehicle emissions Environmental Protection Agency, Region VIII, 999 18th Street, Suite 300, public hearing. This public process budget for Nitrogen Oxides (NOX) which must occur prior to the final revisions is a PM10 precursor. This trading Denver, Colorado 80202–2466 Telephone number: (303) 312–6479 being submitted by a State to us. mechanism will allow Salt Lake County At the March 13, 2002, UAQB SUPPLEMENTARY INFORMATION: to increase their NOX budget by meeting, the UAQB proposed for public Throughout this document wherever decreasing their PM10 budget by an comment the new Rule R307–310. The ‘‘we’’, ‘‘us’’, or ‘‘our’’ are used we mean equivalent amount in order to achieve UAQB has scheduled a public hearing the Environmental Protection Agency. motor vehicle emissions budgets for for April 22, 2002, for considering NOX and PM10 that may then be used to I. What Is the Purpose of This Action? public comment on the above SIP demonstrate transportation conformity revision. with the Salt Lake County PM10 With this action, we are utilizing our attainment demonstration element of parallel processing procedure for III. EPA’s Evaluation of the Proposed the SIP. The trading between emissions consideration of a revision to the Utah Rule R307–310 budgets to demonstrate transportation SIP. Parallel processing allows EPA to (a) Background and Purpose conformity is allowable, as long as a propose rulemaking on a SIP revision, trading mechanism is approved into the and solicit public comment, at the same Transportation conformity is required SIP. In his letter of March 15, 2002, the time the State is processing the SIP by the section 176 of the Clean Air Act Governor asked that EPA parallel revision. The schedule provided with (CAA) to ensure that federally process a proposed revision to the PM10 the Governor’s March 15, 2002, supported highway and transit project attainment demonstration SIP including submittal indicated that the Utah Air activities are consistent with (‘‘conform a new rule, R307–310 ‘‘Salt Lake Quality Board (UAQB) proposed the SIP to’’) the purpose of a state air quality County: Trading of Emission Budgets for revision for a 30-day State public implementation plan (SIP). Conformity Transportation Conformity.’’ comment period beginning on April 1, to the purpose of the SIP means that In this action, EPA is proposing 2002, and ending on April 30, 2002. The transportation activities will not cause approval and soliciting public comment State will conduct a public hearing new air quality violations, worsen on the proposed SIP revision, involving during this 30-day time frame. The existing violations, or delay timely Utah’s new Rule R307–310, that would Governor’s submittal indicates that final attainment of the national ambient air allow the trading of on-road mobile action by the UAQB is anticipated by quality standards. EPA’s transportation source primary PM10 emissions to PM10 May 13, 2002. When the Governor conformity rule establishes the criteria precursor on-road mobile source NOX submits the final SIP revision to us for and procedures for determining whether emissions on a one to one basis. The approval, we will consider any transportation activities conform to the resulting adjusted budgets may then be comments received on our proposed state air quality plan.
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One key provision of EPA’s attainment demonstration SIP, and (4) is C.7 of the State Implementation Plan, transportation conformity rule (see 40 pursuant to 40 CFR part 93. ‘‘Carbon Monoxide Maintenance CFR part 93) requires a demonstration Provisions.’’ (b) Proposed New Rule R307–310 that emissions from the transportation 5. R307–310–4. ‘‘Trading Between Description plan and Transportation Improvement Emission Budgets.’’ This portion of the Program (TIP) are consistent with the An overview of all portions of the rule describes the trading mechanism emissions budgets in the applicable SIP State’s new Rule R307–310 is provided (we note and agree with the State that (40 CFR 93.118 and 93.124). The below: it is appropriate that the primary PM10 transportation emissions budget(s) is 1. R307–310 is entitled ‘‘Salt Lake budget may be used to supplement the defined as the level of on-road mobile County: Trading of Emission Budgets for NOX budget, but that the NOX budget source emissions relied upon in the SIP Transportation Conformity.’’ may not be used to supplement the to attain or maintain compliance with 2. R307–310–1 ‘‘Purpose.’’ The stated primary PM10 budget. EPA agrees with the National Ambient Air Quality purpose of this new rule is: this concept and provides further Standard (NAAQS) in the ‘‘This rule establishes the procedures technical justification below.): nonattainment or maintenance area. that may be used to trade a portion of ‘‘(1) The agencies responsible for In this particular instance, the the primary PM10 budget when demonstrating transportation NAAQS involved is PM10 , the demonstrating that a transportation conformity are authorized to nonattainment area is Salt Lake County, plan, transportation improvement supplement the budget for NOX with a the motor vehicle emissions budgets program, or project conforms with the portion of the budget for primary PM10 involve direct emissions of PM10 and motor vehicle emissions budgets in the for the purpose of demonstrating NOX, the latter as a precursor to the Salt Lake County portion of Section IX, transportation conformity for NOX. The formation of PM10, and the applicable Part A of the State Implementation Plan, NOX budget shall be supplemented SIP is the July 8, 1994, EPA-approved ‘‘Fine Particulate Matter (PM10).’’ using the following procedures. Utah PM10 attainment demonstration 3. R307–310–2. ‘‘Definitions.’’ This (a) The metropolitan planning SIP (see 59 FR 35036) with respect to section provides applicable definitions: organization shall include the following the Salt Lake County element. ‘‘The definitions contained in 40 CFR information in the transportation Transportation conformity is 93.101, effective as of July 1, 2001, are conformity demonstration: demonstrated when future year’s incorporated into this rule by reference. (i) The budget for primary PM10 and projected on-road mobile source’s The following additional definitions NOX for each required year of the emissions for a particular pollutant or apply to this rule. conformity demonstration, before precursor are estimated to be at or below ‘‘Budget’’ means the motor vehicle trading allowed by this rule has been the on-road motor vehicle’s emissions emission projections used in the applied; budget for that pollutant or precursor in attainment demonstration in the Salt (ii) The portion of the primary PM10 the applicable SIP. With reference to Lake County portion of Section IX, Part budget that will be used to supplement conformity for the PM 10 NAAQS for Salt A of the State Implementation Plan, the NOX budget, specified in tons per Lake County, conformity must be ‘‘Fine Particulate Matter (PM10).’’ day using a 1:1 ratio of primary PM10 to demonstrated separately for the PM10 ‘‘NOX’’ means oxides of nitrogen. NOX, for each required year of the and NOX budgets established in the Salt ‘‘Primary PM10’’ means PM10 that is conformity demonstration; Lake County PM10 attainment emitted directly by a source. Primary (iii) The remainder of the primary demonstration element of the SIP. PM10 does not include particulate PM10 budget that will be used in the However, emissions can be traded matter that is formed when gaseous conformity demonstration for primary between the PM10 and NOX budgets if emissions undergo chemical reactions PM10, specified in tons per day for each there is an approved rule in the SIP to in the ambient air. required year of the conformity allow trading to take place as per 40 ‘‘Transportation Conformity’’ means a demonstration; and CFR 93.124(c). The provision in 40 CFR demonstration that a transportation (iv) The budget for primary PM10 and 93.124(c) states: plan, transportation improvement NOX for each required year of the program, or project conforms with the ‘‘A conformity demonstration shall not conformity demonstration after the trade emissions among budgets which the emissions budgets in a state trading allowed by this rule has been applicable implementation plan (or implementation plan, as outlined in 40 applied. implementation plan submission) allocates CFR, Chapter 1, Part 93, ‘‘Determining (b) Transportation conformity for NOX for different pollutants or precursors, or Conformity of Federal Actions to State shall be demonstrated using the NOX among budgets allocated to motor vehicles or Federal Implementation Plans.’’ budget supplemented by a portion of the and other sources, unless the implementation 4. R307–310–3. ‘‘Applicability’’. This primary PM10 budget as described in plan establishes appropriate mechanisms for portion of the rule defines its (a)(ii). Transportation conformity for such trades.’’ applicability. We note that this rule may primary PM10 shall be demonstrated With respect to the above conformity only be applied to Salt Lake County and using the remainder of the primary PM10 rule requirement, the State has only for PM10 : budget described in (a)(iii). developed the proposed new Rule ‘‘(1) This rule applies to agencies (c) The primary PM10 budget shall not R307–310 which will establish an on- responsible for demonstrating be supplemented by using a portion of road mobile source emissions trading transportation conformity with the Salt the NOX budget.’’ mechanism that; (1) involves only PM10 Lake County portion of Section IX, Part (c) Proposed New Rule R307–310 and NOX motor vehicle emission A of the State Implementation Plan, Technical Justification budgets from the PM10 attainment ‘‘Fine Particulate Matter (PM10).’’ demonstration SIP, (2) allows trading in (2) This rule does not apply to The Governor provided the following only one direction from the PM10 budget emission budgets from Section IX, Part technical justification that is designed to to the NOX budget on a one to one basis, D.2 of the State Implementation Plan, support the proposed new Rule R307– (3) applies only to transportation ‘‘Ozone Maintenance Plan.’’ 310 and address the specific issue conformity determinations in Salt Lake (3) This rule does not apply to involving mobile sources emissions County in conjunction with the PM10 emission budgets from Section IX, Part trading, as contemplated by 40 CFR
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93.124(c), for PM10 and NOX. EPA and precursor to ammonium nitrate PM10. on a combination of Chemical Mass the UDAQ jointly developed the These reactions generally occur at rates Balance (CMB) modeling and a micro- following technical justification: of 1 to 10 percent per hour. Thus, it inventory for the area. The CMB model would take at least 10 hours to fully matches chemical profiles on filters 1. Description convert to nitric acid. After this initial collected on high pollution days with PM10 is particulate matter with conversion, only a fraction of the profiles of emission sources in the area diameters smaller than 10 micrometers. gaseous nitric acid will condense as to determine the degree of impact from PM10 consists of solid and/or liquid ammonium nitrate PM10, depending on individual sources. The modeling was particles of (1) primary particles that are equilibrium considerations. Finally, complicated because the majority of the directly emitted particulate matter (PM) during the gas-to-particle conversion PM10 collected on the filters in Salt Lake or PM that quickly condenses upon process, deposition will remove a County was a result of chemical release and (2) secondary particles significant amount of material. reactions that occur in the atmosphere. which are PM that is formed in the Throughout this process of NOX Nitrogen oxides (NOX) and sulfur atmosphere from gaseous precursors. conversion to nitric acid, and then to dioxide (SO2) are gases that undergo Important gaseous precursors to PM PM10 and deposition, an equivalent chemical reactions to form nitrates and include sulfur dioxide (SO2) which amount of directly emitted PM10 is sulfates that are measured as PM10 on converts to sulfate (SO4=) particles, having a much larger effect on PM10 the filters. Primary PM10 emissions from nitrogen oxides (NOX) which convert to concentration. Directly emitted PM10 all source categories, including mobile nitrate (NO3-) particles, volatile organic has an effect on concentration sources, were evaluated using CMB to compounds (VOCs), some of which immediately upon release, while NOX determine the impact at each of the convert to secondary organic aerosols, emissions require hours to register their monitoring sites. Mobile source primary and ammonia (NH3) which adds to the effect. PM10 impacts were estimated using a mass of sulfate PM and allows nitric The conversion of NOX to PM10 has ‘‘finger print’’ of emissions from this acid to convert to PM10 in the form of been discussed at EPA at least since category. Nitrates could not be ammonium nitrate. 1996: differentiated among the major source Currently in Salt Lake County, groups using CMB. The mobile source ‘‘The conversion process may depend on conformity for PM10 utilizes PM10 and contribution to the total measured NO emission figures that were derived several variables, including the availability of X chemical reactants in the atmosphere for the nitrate was determined using a straight from the 1994 EPA-approved PM10 conversion process, and the difference in emission inventory apportionment. attainment demonstration SIP (see 59 mass between the PM10 precursor molecule An analysis based on the SIP’s control FR 35036, July 8, 1994). Since the and the PM10 particle that the precursor strategy worksheet for the ‘‘Air regulatory goal is to achieve and reacts to become. Another concern is that the Monitoring Center’’ (AMC) site was maintain attainment of the NAAQS and rate of conversion of the precursor to PM10 performed, which is the controlling conformity related to total PM10, not may be so long that the precursor may not monitoring site for Salt Lake County (it individual components, it should not entirely convert to PM10 within the same has the highest projected year 2003 matter in conformity analysis whether nonattainment area. Thus, there would be PM concentration, at 147.4 µg/m3). less counteracting effect and no net 10 PM10 consists of directly emitted Page 35 of the State’s originally improvement to air quality in the area. Under 1 (primary) PM10 or secondary nitrate submitted PM10 SIP provides the CMB- the EPA’s proposal, a source of a PM10 PM10 formed in the atmosphere from precursor may offset its increased emissions based attainment demonstration precursor NOX gas emissions, provided with the same precursor type or PM10 (or a calculations for the year 2003, and page the budgets for PM10 and NOX are combination of the two). In this situation, a 36 of the originally submitted PM10 SIP consistent with a demonstration of net improvement in air quality would be provides the corresponding results for attainment. This technical justification assured. At this point, however, the EPA is all the years covered by the SIP revision. outlines the scientific rationale for why not proposing to allow offsetting among In 2003, the total primary PM10 different types of PM10 precursors, or excess NOX emissions can be offset on contribution from mobile sources was a 1 to 1 basis with available PM budget offsetting PM10 increases with reduction in estimated to be 37.4 µg/m3. (This is the 10 PM precursors, because the Agency does in the Salt Lake County attainment 10 sum of all the individual mobile source not now have a scientific basis to propose primary PM categories: leaded, diesel, demonstration, and why this is conversion factors. (61 FR 38305, July 23, 10 conservative (i.e., protective of the 1996)’’ unleaded, road dust, and brakewear.) environment). The total nitrate contribution from This particular technical justification, mobile sources was estimated to be 16.7 2. What Fraction of the NOX Emissions for the proposed Rule R307–310, to only µg/m3. Convert to PM10? allow the trading of the PM10 budget to The existing Salt Lake County PM10 Each ton of gaseous NOX that gets the NOX budget, but to not allow the SIP motor vehicle emission budgets are converted to PM10 creates more than a substitution of NOX for primary PM10, is 40.3 tons per day of primary PM10, and ton of PM10 because the molecular consistent with the above-referenced 32.3 tons per day of NOX. These budgets weight of ammonium nitrate PM10 is EPA statements. Therefore, both EPA’s were derived by the Wasatch Front greater than the molecular weight of existing information and the most Regional Council (WFRC), the NOX gaseous emissions. Considering the current scientific data support allowing Metropolitan Planning Organization or ratio of the molecular weights of the primary PM10 to be traded to the NOX MPO, using the Salt Lake County PM10 NOX precursor gas and the resulting budget, while continuing to demonstrate SIP element attainment year (2003) ammonium nitrate aerosol (PM10), a ton attainment, in the proposed new Rule inventories, adjusted for winter vehicle of NOX that is converted from a gas to R307–310 SIP revision. miles traveled (VMT) rates. a particle can form as much as 1.74 tons At the AMC monitor, the CMB 3. Consistency with the EPA-Approved of PM10. modeling contained in the SIP indicates Salt Lake County PM10 SIP However, not all NOX emissions are 1 converted because it takes time to The 1994 approved PM SIP element The Utah PM10 SIP, that includes the Salt Lake 10 County element, was submitted by the Governor on convert NOX to nitric acid (HNO3), for Salt Lake County contains an November 15, 1991 and was approved by EPA on which is the necessary gaseous attainment demonstration that is based July 8, 1994 (59 FR 35036).
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that 40.3 tons per day of PM10 results in has its own CO motor vehicle emissions the new Rule R307–310. Therefore, a a concentration of 37.4 µg/m3 of primary budget, which has been set at a level periodic review of the effectiveness of PM10, and 32.3 tons per day of NOX demonstrated to keep Salt Lake City in this new rule is important to ensure results in a concentration of 16.7 µg/m3 attainment with the CO standard. there are not any unintended adverse of nitrate. Thus, each ton of PM10 Nothing in this proposal changes this consequences due to this proposed emissions produces 0.93 µg/m3 of CO motor vehicle emissions budget and motor vehicle emissions budget trading primary PM10, and each ton of NOX as stated above for ozone, WFRC has rule. produces 0.52 µg/m3 of nitrate. In been able to demonstrate conformity In a letter dated March 22, 2002, from equivalent terms, each ton of NOX with this CO motor vehicle emissions Richard Sprott, Director, Utah Division emissions has the same ambient impact budget by a wide margin. of Air Quality to Richard Long, Director, as 0.56 tons of PM emissions (0.52 Air and Radiation Program for EPA 10 5. Conclusion divided by 0.93). Thus, substituting Region 8, the State committed to PM10 emissions for NOX emissions in On the basis of the above analyses and evaluate the performance of the the budgets would produce lower since NOX has less impact on a per ton proposed new rule, R307–310, every overall emissions and continue to basis than primary PM10 emissions, three years to determine its overall demonstrate attainment in the Salt Lake there will be a net benefit on ambient air effect and whether it has adversely Countys PM10 nonattainment area. concentrations of PM10 when excess affected the EPA-approved Salt Lake/ NOX emissions are offset on a 1:1 basis Davis Counties ozone maintenance plan 4. Impact of the PM10 and NOX Trading with available PM10 budget in the or the EPA-approved Salt Lake City Rule on Other Pollutants transportation conformity carbon monoxide maintenance plan. In addition to being a nonattainment demonstration. Therefore, using a The State also committed to make area for PM10, Salt Lake County is part portion of the motor vehicle PM10 appropriate recommendations to the of the Salt Lake/Davis Counties ozone emissions budget to offset excess on- UAQB, as necessary, to remedy adverse 2 maintenance area. Salt Lake City is also road mobile sources NOX emissions on effects. The language in the State’s a carbon monoxide (CO) maintenance a 1:1 basis continues to demonstrate March 22, 2002, letter further indicates 3 area. However, this proposal does not attainment of the PM10 NAAQS and is that if needed, EPA may exercise its have an adverse impact on these two conservative and justifiable. authority to perform a SIP call that is pollutants. For ozone, the approved The analyses provided in this consistent with 40 CFR 51.493(f)(1)(i) ozone maintenance plan has its own technical justification were designed to should the State fail to make the motor vehicle NOX emissions budget, show that the trading ratio of PM10 to necessary revisions. which has been set at a level NOX was less than 1:1, but they do not EPA believes this commitment by the demonstrated to keep Salt Lake and establish what this ratio should be. State to be adequate. However, we also Davis Counties in attainment with the Until a more extensive analysis is note that EPA is not precluded from 1-hour ozone standard. We note that the completed, that will be subject to EPA performing our own evaluation analysis ozone maintenance plan actually has approval, it is not possible to determine of the proposed trading rule at any time separate motor vehicle NOX emissions the exact amount of NOX that would be that we deem appropriate. Further, if we budgets for Salt Lake and Davis needed to offset an increase in PM10 determine there are adverse air quality Counties, but it allows WFRC to emissions. Therefore, trading of PM10 to effects associated with the demonstrate conformity for each county NOX emissions can only be justified in implementation of the proposed new individually or on a combined basis at one direction at this time. Rule, R307–310, or if we determine that their discretion. Nothing in this the State has failed to make the IV. Evaluation/Reconciliation— proposal for the new Rule R307–310 necessary revisions to remedy identified Implementation and Periodic Review of changes the Salt Lake/Davis Counties adverse effects in either the PM , the Effectiveness of the New Rule R307– 10 ozone motor vehicle emissions budgets ozone, or CO SIPs, EPA may exercise 310 for Salt Lake County for NOX and WFRC must continue to our authority to issue a SIP call comply with these budgets in order to The proposed new Rule, R307–310, consistent with the provisions of section demonstrate conformity for ozone. establishes the procedures that may be 110(k)(5) of the Clean Air Act (CAA) as Therefore, there will be no adverse used to trade a portion of the primary amended in 1990. To clarify, although impact on continued attainment of the PM 10 motor vehicle emissions budget to the State has indicated in its letter of 1-hour ozone standard for Salt Lake the NOX motor vehicle emissions budget March 22, 2002, that a SIP call may County. In fact, WFRC’s most recent when demonstrating that a happen consistent with 40 CFR conformity analyses show that the area transportation plan, transportation 51.493(f)(1)(i), EPA is in no way only complies with the Salt Lake/Davis improvement program, or project restricted to this particular section of Counties combined existing 1-hour conforms with the motor vehicle the CFR. If necessary, EPA will issue a ozone NOX motor vehicle emissions emissions budgets for PM10 and NOX in SIP call, as provided under section budget by a wide margin in future years. the Salt Lake County element of the 110(k)(5) of the CAA, as we deem With respect to carbon monoxide, Utah PM10 portion of the State appropriate. In conjunction with a SIP NOX emissions are not precursors to Implementation Plan. As stated above in call contemplated under section carbon monoxide and nothing in this the technical justification, the Salt Lake/ 110(k)(5) of the CAA, we will also proposal for the new Rule R307–310 Davis Counties ozone maintenance plan consider establishing a schedule of would be expected to impact Salt Lake and the Salt Lake City carbon monoxide sanctions as provided under section 179 City’s current CO maintenance status. maintenance plan are not expected to be of the CAA. Like ozone, the CO maintenance plan affected by this new rule. However, because trading of motor V. Consideration of CAA section 110(l) 2 The Salt Lake/Davis Counties ozone (1-hour vehicle emissions budgets for Section 110(l) of the CAA states that standard) redesignation to attainment was approved conformity purposes is not common, a SIP revision cannot be approved if the by EPA on July 17, 1997 (62 FR 38213). 3 The Salt Lake City carbon monoxide there is the possibility that unforseen revision would interfere with any redesignation to attainment was approved by EPA circumstances may arise in the future applicable requirement concerning on January 22, 1999 (64 FR 3216). that may affect the implementation of attainment and reasonable further
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progress towards attainment of a applies to any rule that: (1) is implementing a federal standard, and NAAQS or any other applicable determined to be ‘‘economically does not alter the relationship or the requirements of the CAA. In view of the significant’’ as defined under Executive distribution of power and State’s rule language for its new Rule Order 12866, and (2) concerns an responsibilities established in the Clean R307–310, the analyses presented above environmental health or safety risk that Air Act. Thus, the requirements of in section ‘‘(c) Proposed New Rule EPA has reason to believe may have a section 6 of the Executive Order do not R307–310 Technical Justification’’, and disproportionate effect on children. If apply to this rule. the regulatory action meets both criteria, the fact that NOX has less impact on a (d) Executive Order 13175 (Consultation the Agency must evaluate the per ton basis than primary PM10 and Coordination With Indian Tribal environmental health or safety effects of emissions there will be a net benefit on Governments) ambient air concentrations of PM10 the planned rule on children, and when excess NOX emissions are offset explain why the planned regulation is Executive Order 13175, entitled on a one to one basis. Therefore, the preferable to other potentially effective ‘‘Consultation and Coordination with proposed new Rule R307–310, that and reasonably feasible alternatives Indian Tribal Governments’’ (65 FR would allow the trading of a portion of considered by the Agency. 67249, November 6, 2000), requires EPA the PM10 motor vehicle emissions This rule is not subject to Executive to develop an accountable process to budget to the NOX motor vehicle Order 13045 because it is not ensure ‘‘meaningful and timely input by emissions budget on a one to one basis, economically significant under tribal officials in the development of continues to demonstrate attainment of Executive Order 12866 and it does not regulatory policies that have tribal the PM10 NAAQS and is conservative involve decisions intended to mitigate implications.’’ and justifiable. We have concluded that environmental health or safety risks. This rule does not have tribal implications. It will not have substantial our proposed approval of the State’s (c) Executive Order 13132 new Rule R307–310 will meet the intent direct effects on tribal governments, on Federalism (64 FR 43255, August 10, of section 110(l) of the CAA. the relationship between the Federal 1999) revokes and replaces Executive government and Indian tribes, or on the VI. Proposed Rulemaking Action and Orders 12612 (Federalism) and 12875 distribution of power and Request for Public Comment (Enhancing the Intergovernmental responsibilities between the Federal We are soliciting public comment on Partnership). Executive Order 13132 government and Indian tribes, as all aspects of this proposed rule. As requires EPA to develop an accountable specified in Executive Order 13175. stated above, we are proposing approval process to ensure ‘‘meaningful and Thus, Executive Order 13175 does not of the Governor’s March 15, 2002, timely input by State and local officials apply to this rule. proposed revision to the Utah State in the development of regulatory policies that have federalism (e) Executive Order 13211 (Energy Implementation Plan, involving a new implications.’’ ‘‘Policies that have Effects) Rule, R307–310, that would allow the federalism implications’’ is defined in trading of a portion of the PM motor This rule is not subject to Executive 10 the Executive Order to include vehicle emissions budget to the NO Order 13211 ‘‘Actions Concerning X regulations that have ‘‘substantial direct motor vehicle emissions budget. This Regulations That Significantly Affect effects on the States, on the relationship trading mechanism will allow a portion Energy Supply, Distribution, or Use’’ (66 between the national government and of the PM motor vehicle emissions FR 28355 (May 22, 2001)) because it is 10 the States, or on the distribution of budget to be applied to the NO motor not a significant regulatory action under X power and responsibilities among the vehicle emissions budget on a 1:1 ratio, Executive Order 12866. various levels of government.’’ Under thus increasing the NOX motor vehicle Executive Order 13132, EPA may not (f) Regulatory Flexibility emissions budget and decreasing the issue a regulation that has federalism The Regulatory Flexibility Act (RFA) PM10 motor vehicle emissions budget by implications, that imposes substantial generally requires an agency to conduct an equivalent amount. These adjusted direct compliance costs, and that is not a regulatory flexibility analysis of any budgets may then be used for required by statute, unless the Federal rule subject to notice and comment transportation conformity purposes with government provides the funds rulemaking requirements unless the the Salt Lake County PM10 attainment necessary to pay the direct compliance agency certifies that the rule will not demonstration element of the SIP. Send costs incurred by State and local have a significant economic impact on your comments in duplicate to the governments, or EPA consults with a substantial number of small entities. address listed in the ADDRESSES section State and local officials early in the Small entities include small businesses, of this proposed rule. We will consider process of developing the proposed small not-for-profit enterprises, and your comments in deciding our final regulation. EPA also may not issue a small governmental jurisdictions. action if your letter is received before regulation that has federalism This rule will not have a significant May 31, 2002. implications and that preempts State impact on a substantial number of small Administrative Requirements law unless the Agency consults with entities because SIP approvals under State and local officials early in the section 110 and subchapter I, part D of (a) Executive Order 12866 process of developing the proposed the Clean Air Act do not create any new The Office of Management and Budget regulation. requirements, but simply propose (OMB) has exempted this regulatory This rule will not have substantial approval requirements that the State is action from Executive Order 12866, direct effects on the States, on the already imposing. Therefore, because entitled ‘‘Regulatory Planning and relationship between the national the Federal SIP approval does not create Review.’’ government and the States, or on the any new requirements, I certify that this distribution of power and action will not have a significant (b) Executive Order 13045 responsibilities among the various economic impact on a substantial Protection of Children from levels of government, as specified in number of small entities. Moreover, due Environmental Health Risks and Safety Executive Order 13132, because it to the nature of the Federal-State Risks (62 FR 19885, April 23, 1997), merely approves state rules relationship under the Clean Air Act,
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preparation of flexibility analysis would dioxide, Ozone, Particulate matter, requests a separate copy also be sent to constitute Federal inquiry into the Reporting and recordkeeping the contact person listed below (see FOR economic reasonableness of state action. requirements. FURTHER INFORMATION CONTACT). The Clean Air Act forbids EPA to base Dated: April 22, 2002. Public Hearing. A public hearing will its actions concerning SIPs on such be held at 10 a.m. on May 23, 2002 in Robert E. Roberts, grounds. Union Electric Co., v. U.S. the new EPA facility located at 109 T.W. EPA, 427 U.S. 246, 255–66 (1976); 42 Regional Administrator, Region VIII. Alexander Drive, Auditorium in U.S.C. 7410(a)(2). [FR Doc. 02–10727 Filed 4–30–02; 8:45 am] Building C, Room C111, Research BILLING CODE 6560–50–P Triangle Park, North Carolina, 27709. (g) Unfunded Mandates Docket. Docket No. A–96–04 contains Under section 202 of the Unfunded supporting information used in Mandates Reform Act of 1995 ENVIRONMENTAL PROTECTION developing the NESHAP. The docket is (‘‘Unfunded Mandates Act’’), signed AGENCY located at the U.S. EPA, 401 M Street, into law on March 22, 1995, EPA must 40 CFR Part 63 SW, Washington, DC 20460 in room prepare a budgetary impact statement to M–1500, Waterside Mall (ground floor), accompany any proposed or final rule [FRL–7204–6] and may be inspected from 8:30 a.m. to that includes a Federal mandate that RIN 2060–AE82 5:30 p.m., Monday through Friday, may result in estimated costs to State, excluding legal holidays. local, or tribal governments in the National Emission Standards for FOR FURTHER INFORMATION CONTACT: For aggregate; or to the private sector, of Hazardous Air Pollutants: information about the proposed $100 million or more. Under section Miscellaneous Organic Chemical NESHAP, contact Mr. Randy McDonald, 205, EPA must select the most cost- Manufacturing and Miscellaneous Organic Chemicals Group, Emission effective and least burdensome Coating Manufacturing Standards Division (C504–04), U.S. alternative that achieves the objectives EPA, Research Triangle Park, North of the rule and is consistent with AGENCY: Environmental Protection Carolina, 27711, telephone number statutory requirements. Section 203 Agency (EPA). (919) 541–5402, electronic mail address requires EPA to establish a plan for ACTION: Proposed rules; extension of [email protected]. For informing and advising any small comment period and notice of public information about the public hearing, governments that may be significantly hearing. contact Ms. Maria Noell, Organic or uniquely impacted by the rule. Chemicals Group, Emission Standards SUMMARY: EPA has determined that the approval This action announces a new Division (C504–04), U.S. EPA, Research action proposed does not include a date for a public hearing EPA is holding Triangle Park, North Carolina 27711, Federal mandate that may result in to take comments on the Agency’s telephone number (919) 541–5607, estimated costs of $100 million or more proposed rule for national emission electronic mail address to either State, local, or tribal standards for hazardous air pollutants [email protected]. governments in the aggregate, or to the (NESHAP): Miscellaneous Organic private sector. This Federal action Chemical Manufacturing and SUPPLEMENTARY INFORMATION: proposes to approve pre-existing Miscellaneous Coating Manufacturing, Comments requirements under State or local law, published on April 4, 2002. The and imposes no new requirements. comment period for the above-named Comments and data may be submitted Accordingly, no additional costs to action is also being extended. by electronic mail (e-mail) to: a–and–r– [email protected]. Electronic comments State, local, or tribal governments, or to DATES: Comments. Submit comments on must be submitted either as an ASCII the private sector, result from this or before June 28, 2002. action. file to avoid the use of special characters Public Hearing. The public hearing and encryption problems or on disks in will be held on May 23, 2002, from 10 (h) National Technology Transfer and WordPerfect file format. All comments a.m. to 4 p.m. (EST). The hearing may Advancement Act and data submitted in electronic form conclude prior to 4 p.m., depending on must note the docket number: A–96–04. Section 12 of the National Technology the number of attendees and level of No confidential business information Transfer and Advancement Act interest. If you are interested in (CBI) should be submitted by e-mail. (NTTAA) of 1995 requires Federal attending the hearing, you must call the Electronic comments may be filed agencies to evaluate existing technical contact person listed below (see FOR standards when developing a new online at many Federal Depository FURTHER INFORMATION CONTACT). You Libraries. regulation. To comply with NTTAA, must contact the EPA and request to EPA must consider and use ‘‘voluntary Commenters wishing to submit speak at a public hearing by May 10, proprietary information for consensus standards’’ (VCS) if available 2002. and applicable when developing consideration must clearly distinguish programs and policies unless doing so ADDRESSES: Comments. By U.S. Postal such information from other comments would be inconsistent with applicable Service, send comments (in duplicate if and clearly label it as CBI. Send law or otherwise impractical. possible) to: Air and Radiation Docket submissions containing such The EPA believes that VCS are and Information Center (6102), proprietary information directly to the inapplicable to this action. Today’s Attention Docket Number A–96–04, following address, and not to the public action does not require the public to U.S. EPA, 1200 Pennsylvania Avenue, docket, to ensure that proprietary perform activities conducive to the use NW, Washington, DC 20460. In person information is not inadvertently placed of VCS. or by courier, deliver comments (in in the docket: Attention: Mr. Randy duplicate if possible) to: Air and McDonald, c/o OAQPS Document List of Subjects in 40 CFR Part 52 Radiation Docket and Information Control Officer (C404–02), U.S. EPA, Environmental protection, Air Center (6102), Attention Docket Number Research Triangle Park, NC 27709. The pollution control, Carbon monoxide, A–96–04, U.S. EPA, 401 M Street, SW, EPA will disclose information identified Intergovernmental relations, Nitrogen Washington, DC 20460. The EPA as CBI only to the extent allowed by the
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procedures set forth in 40 CFR part 2. ENVIRONMENTAL PROTECTION Vehicle and Fuels Emission Laboratory, If no claim of confidentiality AGENCY 2000 Traverwood, Ann Arbor, MI accompanies a submission when it is 48105; Telephone (734) 214–4334; FAX: received by the EPA, the information 40 CFR Parts 89, 90, 91, 94, 1048, 1051, (734) 214–4816; E-mail: may be made available to the public 1065, and 1068 [email protected]. EPA without further notice to the [AMS–FRL–7204–7] hearings and comments hotline: commenter. 734–214–4370. RIN 2060–AI11 SUPPLEMENTARY INFORMATION: On World Wide Web (WWW) Control of Emissions from Nonroad October 5, 2001, we published a Notice In addition to being available in the Large Spark Ignition Engines and of Proposed Rulemaking (NPRM) for the Control of Emissions from Nonroad docket, an electronic copy of the Recreational Engines (Marine and Large Spark Ignition Engines and proposed NESHAP will also be available Land-based); Extension of Comment Period Recreational Engines (Marine and Land- on the WWW through the Technology Based) (66 FR 51098). The comment Transfer Network (TTN). Following the AGENCY: Environmental Protection period for the NPRM was originally Administrator’s signature, a copy of the Agency (EPA). scheduled to end on December 17, 2001; proposed NESHAP will be posted on the ACTION: Proposed rule; reopening of however, the comment period was TTN’s policy and guidance page for comment period. extended to January 18, 2002 as a result newly proposed or promulgated rules at of several requests for additional time. http://www.epa.gov/ttn/oarpg. The TTN SUMMARY: The Environmental Protection During this comment period, we provides information and technology Agency published in the Federal received many comments from a wide exchange in various areas of air Register of October 5, 2001, a notice of range of commenters covering a broad pollution control. If more information proposed rulemaking proposing new range of issues. One of the issues that regarding the TTN is needed, call the emission standards for large spark- was raised by several commenters 1 was TTN HELP line at (919) 541–5384. ignition engines, recreational vehicles the information related to the control of using spark-ignition engines, and The EPA published its proposed rules evaporative emissions related to recreational marine diesel engines. The permeation from fuel tanks and fuel for the Miscellaneous Organic Chemical Agency received a number of comments Manufacturing source category and the hoses, and the lack of any proposed noting considerable information on emission standards regulating these Miscellaneous Coating Manufacturing strategies to reduce permeation emissions from land-based recreational source category, on April 4, 2002 (67 FR emissions and suggesting that vehicles. 16154). In the proposed rules, we requirements controlling such emissions We have conducted our initial review originally scheduled the public hearing be proposed for land-based recreational and assessment of the issues and data date for May 6, 2002, contingent upon vehicles. As a result, EPA is requesting raised in these comments, and believe receiving a request for one. We did comment on whether it should finalize that they have merit and should be receive a request to hold a public an emission standard controlling presented to the public for further hearing, so we are announcing that the permeation emissions from fuel tanks consideration. Therefore, we are asking public hearing date is rescheduled for and hoses for land-based recreational for comment on the possibility of May 23, 2002. We also scheduled the vehicles. This document provides a finalizing standards regulating comment period to end on June 3, 2002; detailed discussion regarding this issue permeation emissions from land-based however, we are now extending the and discusses what form a final recreational vehicles. Our work on comment period to June 28, 2002. We standard regulating these permeation evaporative emissions from marine are extending these dates because many emissions would take. This document applications indicates that the of the facilities affected by the proposed extends the period for written permeation emissions from tanks and rules will also be subject to other comments on that notice of proposed hoses are a large part of the total proposed MACT standards that will rulemaking to May 31, 2002. The emissions from these applications. have public comment periods extension only applies to comments on Additionally, commenters stated that overlapping with the comment periods whether EPA should finalize emission work done by the California Air of the Miscellaneous Organic Chemical standards regulating permeation Resources Board (ARB) on permeation Manufacturing and the Miscellaneous emissions from land-based recreational emissions from plastic fuel tanks and Coating Manufacturing NESHAP. In vehicles, and, if so, the form such rubber fuel line hoses for various types addition, many of these facilities also standards would take. of nonroad equipment as well as portable plastic fuel containers have actions due, such as DATES: Comments: Send written indicated that these permeation precompliance reports, during this same comments on this notice by May 31, 2002. emissions are a concern. Our own time period on promulgated MACT investigation into the hydrocarbon ADDRESSES: standards that affect them. This You may send written emissions related to permeation of fuel extension of the public comment period comments in paper form to Margaret tanks and fuel hoses with respect to and the public hearing date will provide Borushko, U.S. EPA, National Vehicle marine applications supports the these facilities additional time necessary and Fuels Emission Laboratory, 2000 concerns raised by the commenters. to better prepare meaningful comments Traverwood, Ann Arbor, MI 48105. We Given this, we are assessing the on these proposed rules. must receive them by the date indicated possibility of regulating permeation under DATES above. You may also emissions from other vehicle types, Dated: April 25, 2002. submit comments via e-mail to Robert Brenner, including, off-highway motorcycles ‘‘[email protected].’’ In your (OHM), all-terrain vehicles (ATVs) Acting Assistant Administrator for Air and correspondence, refer to Docket (including utility work and specialty Radiation. A–2000–01. [FR Doc. 02–10728 Filed 4–30–02; 8:45 am] FOR FURTHER INFORMATION CONTACT: 1 See public docket A–2000–1 IV–D–186, items BILLING CODE 6560–50–P Margaret Borushko, U.S. EPA, National IV–D–198, and IV–D–202.
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vehicles), and snowmobiles that may First, we request comment on the form These certification statements could be use fuel tanks or hoses with less-than- these standards would take (e.g., done on a family basis, or possibly a optimal control of permeation whether there should be absolute blanket statement could cover a emissions. numerical limits on a gram per gallon manufacturer’s entire product line. basis or if the standard should be Similarly, near zero permeation I. Description of Regulatory Concept expressed as a grams per square meter emissions from hoses are feasible. We are reopening the comment period per day of tank surface area). Given Assuming a factor to address testing for land-based recreational vehicles to differences in wall thickness, tank concerns, EPA expects that 95 percent request comment on whether we should geometry, material quality, and pigment, reductions over uncontrolled emission finalize standards that would require we also ask comment on whether an levels for permeation are achievable for low permeability fuel tanks and hoses emission credit averaging, banking, and rubber hoses. For fuel hoses, we would on off-highway motorcycles, ATVs, and trading (ABT) scheme would be helpful consider a standard of 5 grams per snowmobiles starting with the 2006 and necessary for the fuel tank square meter per day at 23°C, as would model year. The requirements would permeation requirements. If we do be measured using the recommended phase-in beginning for all three types of adopt ABT provisions, we would test procedure in SAE J1527. recreational vehicle at 50 percent in envision an ABT program similar in We also request comment on 2006 and 100 percent in 2007. This is nature to that used for heavy-duty implementing requirements such as the same start year as was proposed in engines (see 40 CFR 86.004–15) but those described above by allowing the the October 5, 2001 NPRM for exhaust substituting fuel tank volume for manufacturer to submit a statement at emission control for these three types of transient conversion factor. the time of certification that the fuel recreational vehicle. We believe cost- Information indicates that permeation tanks and hoses used on their products effective technologies exist to emissions can essentially be eliminated meet standards, specified materials, or significantly reduce permeation at minimal cost. We are interested in construction requirements based on emissions. Because all of these vehicles comments on provisions that would testing results. For example, a use high density polyethylene (HDPE) require near zero permeation levels, manufacturer using plastic fuel tanks tanks, manufacturers would in all with a small factor to address issues could state that the family at issue is likelihood have to employ one of the such as measurement accuracy or equipped with a fuel tank with a low barrier technologies ( e.g., a fluorination repeatability. Available data indicate permeability barrier treatment such as or sulfonation treatment) described that 95 percent reductions are fluorination and provide EPA the below to meet the standards. The use of achievable. Achieving reductions at this supporting test information as described metal fuel tanks would also meet the level repeatedly would require tanks above for the worst case configuration in standards, since metal tanks do not with consistent material quality, the family. Key parameters could experience any permeation losses. Fuel amount, and composition including include tank geometry, wall thickness, tanks built with permeation resistant pigments and any additive packages. pigment, additive package, and amount barrier layers would also be possible, This would enable process and of material in the tank. All tanks in the but could likely be more expensive and efficiency optimization and consistency family would require the same level or employ production practices not used in the effectiveness of surface treatment type of treatment in production. on HDPE tanks in these applications. processes. These reductions imply a We request comment on these and We also request comment on tank permeability standard of 0.04 other options that would enable promulgating standards that would also grams per gallon per day at 30°C or regulation and enforcement of low require the use of low permeability fuel about 0.4 to 0.5 grams per square meter permeability requirements. Most hoses on all land-base recreational per day. We are also requesting notably we are interested in provisions vehicles, starting with 50 percent comments on the estimates for that would allow the certificate holder implementation in the 2006 model year emissions reductions and costs assurance that the treated tanks and fuel and 100 percent in 2007. presented in this notice. hoses provided by suppliers/vendors Even though snowmobiles do not Certification with these fuel tank consistently meet the performance usually experience year around use, as requirements would require testing such specifications laid out in the certificate is the case with ATVs, off-highway as that described in 49 CFR 173 and provisions regarding liability. motorcycles, etc., we are including appendix B, California ARB test method Information concerning potential draft snowmobiles in this request for 513, or equivalent, as laid out in the regulations covering these comment because it is common practice docket. Normally five tests would be implementation provisions as discussed among snowmobile owners to store their required and the average value used. above can be found in the public docket snowmobiles in the off-season with fuel This test is based on a change in filled (A–2000–1). in the tank (typically half full to full tank mass over a period of time. We Another important element of the test tank). A fuel stabilizer is typically would consider a temperature of 28°C ± requirements is fuel quality. Permeation added to the fuel to prevent gum, 28°C to be an appropriate range for our testing generally involves a gasoline or varnish, and rust from occurring in the testing requirement. Vehicle hydrocarbon mixture and may involve engine as a result of the fuel sitting in manufacturers or tank manufacturers alcohol as well. There are at least four the fuel tank and fuel system for an could certify and either could contract possible test fuels for consideration. extended period of time, but this does with a party providing barrier treatment These include: (1) Neat gasoline such as not reduce permeation. Thus, or another source to do the required current EPA certification fuel, (2) snowmobiles experience fuel testing. certification quality gasoline with a 10% permeation losses just like off-highway With regard to fuel hoses, the ethanol blend as is prescribed for the motorcycles and ATVs. We request requirement would apply to any line Tier 2 automobile evaporative comment on the fuel storage practices of normally containing liquid gasoline in standards, (3) ASTM D471 test fuel C snowmobile operators. storage or operation. These fuel hoses (50% iso-octane/50% toluene) and, (4) EPA requests comments in several could be certified as being ASTM D471 test fuel I (test fuel C with areas with regard to the way in which manufactured in compliance with 15% methanol). Permeation is greater requirement might be implemented. certain accepted SAE specifications. with alcohol-blend fuels and since there
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is a significant amount of ethanol and The majority of fuel hoses used in EPA’s examination of land-based other alcohols used in gasohol and other recreational vehicles today are made of recreational vehicles indicated that summer and winter gasolines Tier 2 nitrile rubber which has a high rate of none of these vehicles are equipped type evaporative test fuel is of special fuel permeation.3 However, low with fuel hoses that significantly reduce interest. We are requesting comments on permeation hoses are available that or eliminate permeation. The the test fuel. could be used in these applications. incremental cost of a fuel line with low Low permeability hoses produced today permeation properties for recreational II. Technological Feasibility are generally constructed in one of two vehicles is estimated to be about $1.00 EPA believes there are available ways: using a low permeability material per foot. For off-highway motorcycles, it technologies that can reduce permeation or a low permeability barrier layer. One is estimated that they use approximately emissions to near-zero levels. For hose design, already used in some one to two feet of fuel line on average. example, fluorinated fuel tanks and low marine applications, uses a For ATVs, we estimate one foot of fuel permeability hoses, which are already thermoplastic layer between two rubber line on average. Snowmobiles are a little available for small additional costs, layers to control permeation. This more complex since they use multi- could reduce permeation of tanks and thermoplastic barrier may either be cylinder engines (either two or three hoses by 95 percent or more. The nylon or ethyl vinyl alcohol. In cylinders). For two cylinder engines we application of these technologies to automotive applications, other barrier estimate two to three feet of fuel line land-based recreational vehicles appears materials are used such as and for three cylinder engines we to be relatively straightforward, with fluoroelastomers and fluoroplastics estimate three to four feet of fuel line. little cost and no adverse performance which are two to three orders of We are interested in collecting more or aesthetic impacts. In addition, the magnitude less permeable than hoses information regarding fuel hoses control technology would generally pay currently on recreational vehicles.4 By currently used on land-based for itself over time by conserving fuel replacing rubber hoses with low recreational vehicles, in particular that would otherwise evaporate. permeability hoses, permeation regarding the typical length, the A recent regulation in California emissions through the fuel hoses can be material, and the permeation properties. requires a change from untreated high- reduced by more than 95 percent. An Table 1 also presents estimated costs of density polyethylene (HDPE) plastic to added benefit of low permeability lines hose permeation control. Fuel savings fluorinated or sulfonated HDPE portable is that some fluoropolymers can be due to reducing permeation, which are gasoline cans. Fuel tanks used by land- made to conduct electricity and discussed later, are not included in this based recreational vehicles are all made therefore can prevent the buildup of table. The costs in Table 1 include a 30 of HDPE. Comments from California static charges. percent manufacturer markup from the vehicle manufacturer. ARB suggest that the same technology III. Projected Impacts used for small portable HDPE gasoline fuel cans could be readily applied to the A. Economic Impact TABLE 1.—AVERAGE COST OF fuel tanks of recreational vehicles. Off-highway motorcycle fuel tanks PERMEATION CONTROL PER VEHICLE As discussed above, there are two range in capacity from approximately types of fuel tank barrier processes that Snow- one gallon on some smaller youth OHM ATVs mo- can be employed to reduce or eliminate models to about three gallons on some biles permeation in HDPE plastic tanks. The enduro motorcycles. For ATVs, fuel fluorination process causes a chemical tanks range from one gallon for the Average fuel tank reaction where exposed hydrogen atoms smaller youth models to five gallons for capacity [gallons] 3 4 11 are replaced by larger fluorine atoms the larger utility models. Finally, Fluorination cost (in- which form a barrier on the surface of snowmobile fuel tanks range from 10 cludes shipping/ the fuel tank. In this process, fuel tanks handling/over- gallons to about 12 gallons. We estimate head) ...... $2.19 $2.93 $5.43 are stacked in a steel basket and placed that fluorination of the fuel tanks would Average hose in a sealed reactor. All of the air in the cost about $0.50 per gallon of capacity. length [feet] ...... 1.5 1 3.5 reactor is removed and replaced with Cost is related to fuel tank size because Increased Hose fluorine gas. By pulling a vacuum in the the cost of the treatment to any given Cost ...... 1.95 1.30 4.55 reactor, the fluorine gas is forced into level of effectiveness depends on how Total Cost Increase 4.14 4.23 9.98 every crevice in the fuel tanks. As a many fuel tanks can be fit into the result of this process, both the inside fluorination chamber and the amount of B. Environmental Impact and outside surfaces of the fuel tank are polymer to be treated. It is estimated As was discussed earlier, EPA as well treated. As an alternative, for tanks that that shipping, handling, and overhead as California ARB, have conducted are blow molded, the inside surface of costs would be an additional $0.22 to permeation testing with regard to the fuel tank can be exposed to fluorine $0.81 per fuel tank depending on tank permeation emissions from HDPE during the blow molding process. In a volume. Table 1 presents estimated plastic tanks. Permeation rates varied similar barrier strategy, called costs of fuel tank permeation control from 0.2 to1.0 grams per gallon per day sulfonation, sulfur trioxide is used to using fluorination. with an average value of 0.76 g/gal/day. create the barrier by reacting with the This data was based on tests with an exposed polyethylene to form sulfonic Paper 920164, 1992, Air Docket A–2000–01, average temperature of about 29°C. acid groups on the surface. Either of Document No. II–A–60. Temperature has a first-order effect on these processes can be used to reduce 3 Stahl, W., Stevens, R., ‘‘Fuel-Alcohol Permeation Rates of Fluoroelastomers, the rate of permeation. Roughly, gasoline permeation by more than 95 Fluoroplastics, and other Fuel Resisitant Materials,’’ permeation doubles with every 10°C 2 percent. SAE 920163, 1992. increase in temperature. For example, 4 Denbow, R., Browning, L., Coleman, D., ‘‘Report we estimate that at 23°C, the average 2 Kathios, D., Ziff, R., Petrulis, A., Bonczyk, J., Submitted for WA 2–9, Evaluation of the Costs and value for these fuel tanks would be ‘‘Permeation of Gasoline and Gasoline-alcohol Fuel Capabilities of Vehicle Evaporative Emission Blends Through High-Density Polyethylene Fuel Control Technologies,’’ ICF, ARCADIS Geraghty & about 0.50 g/gal/day. This test data can Tanks with Different Barrier Technologies,’’ SAE Miller, March 22, 1999. be found in the docket
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Fuel hoses on recreational vehicles of fuel hose, this yields an emission rate turnover estimates used in our draft generally have an inside diameter of of 5.0 g/day at 23°C. NONROAD emissions model.6 The daily about 6 mm (1/4 inch) and a permeation Table 2 presents national totals for temperatures by region (6 regions are rate of 550 grams per square meter per permeation emissions from recreational used) are based on a report which day for uncontrolled hoses at 23°C. We vehicles. These permeation estimates summarizes a survey of dispensed fuel base this permeation rate on the SAE J30 are based on the emission rates and ambient temperatures in the United requirement for R7 fuel hose.5 For 1 foot discussed above and population and States.7
TABLE 2.—POTENTIAL PERMEATION EMISSION CONTROL REDUCTIONS [tons/yr]
Category Scenario 2005 2010 2020 2030
Off-highway motorcycles ...... baseline ...... 6,203 6,434 6,903 6,847 control ...... 6,203 3,258 188 651 reduction ...... 0 246 519 563 ATVs ...... baseline ...... 24,891 33,136 38,856 36,777 control ...... 24,891 21,574 4,139 7,046 reduction ...... 0 11,562 34,716 29,731 Snowmobiles ...... baseline ...... 16,083 16,681 17,899 17,679 control ...... 16,083 8,462 517 2,320 reduction ...... 0 8,219 17,382 15,359
Total ...... baseline ...... 47,178 56,251 63,658 61,303 control ...... 41,178 33,294 4,845 10,018 reduction ...... 0 22,957 58,813 51,286
C. Cost per Ton of Emissions Reduced The average lifetimes of typical recreational vehicles are estimated to be about 9 years for off-highway motorcycle and snowmobiles and 13 years for ATVs. Permeation control techniques can reduce emissions by about 95 percent for plastic fuel tanks and more than 99 percent for rubber hoses. Multiplying this efficiency and these emission rates by the life of the vehicles and discounting at 7 percent gives us lifetime per vehicle emission reductions. Using the cost estimates above, we have also determined cost per ton of hydrocarbons reduced. These estimates are presented Table 3.
TABLE 3.—ESTIMATED COST PER TON OF HC REDUCED WITHOUT FUEL SAVINGS
Lifetime Discounted Category Source Cost reductions cost per ton (NPV) (NPV, tons) ($/ton)
Off-highway motorcycles ...... fuel tank ...... $2.19 0.0026 $828 fuel hose ...... $1.95 0.0315 $62
Total ...... $4.14 0.0342 $121 ATVs ...... fuel tank ...... $2.93 0.0044 $664 fuel hose ...... $1.30 0.0263 $49
Total ...... $4.23 0.0307 $138 Snowmobiles ...... fuel tank ...... $5.43 0.0079 $689 fuel hose ...... $4.55 0.0598 $76
Total ...... $9.98 0.0677 $147
Because these emissions are composed of otherwise useable fuel that is lost to the atmosphere, measures that reduce permeation emissions can result in potentially significant fuel savings. Table 4 presents our estimates of these fuel savings as well as adjusted cost per ton estimates which consider these fuel savings. The value of the fuel savings presented are based on a discount rate of 7 percent and an average nontax gasoline fuel price of $1.10 per gallon. As is shown below, the fuel savings are generally larger than the cost of using low permeation technology. To the consumer this is a net cost savings over the vehicle life of about $8 for off-highway motorcycles, $7 for ATVs, and $14 for snowmobiles. It is estimated that this technology would save about 20 million gallons of gasoline per year when fully implemented.
5 SAE J30, ‘‘Fuel and Oil Hoses,’’ Surface Vehicle For more detailed information on the draft Conducted at Service Stations by American Standard, Society of Automotive Engineer Revised NONROAD model, see our Web site at Petroleum Institute,’’ Prepared by Radian June 1998. www.epa.gov/otaq/nonrdmdl.htm. Corporation for American Petroleum Institute, 6 This information is also available in Chapter 6 7 API Publication No. 4278, ‘‘Summary and November 11, 1976, Docket A–2000–01, Document of the Regulatory Support Document for the NPRM. Analysis of Data from Gasoline Temperature Survey II–A–16.
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TABLE 4.—ESTIMATED COST PER TON OF HC REDUCED WITH FUEL SAVINGS
Value of Discounted Category Source Fuel saved fuel savings cost per ton (gallons) (NPV) ($/ton)
Off-highway motorcycles ...... fuel tank ...... 1.1 $0.96 $465 fuel hose ...... 13.4 11.45 (301)
Total ...... 14.6 12.41 (242) ATVs ...... fuel tank ...... 2.2 1.64 292 fuel hose ...... 12.9 9.79 (323)
Total ...... 15.1 11.43 (235) Snowmobiles ...... fuel tank ...... 3.4 2.82 326 fuel hose ...... 25.5 21.71 (287) Total ...... 28.8 24.57 (216)
Dated: April 25, 2002. I. Background 12866 directs agencies to assess all costs Elizabeth Craig, Historically, to bill DME claims under and benefits of available regulatory Acting Assistant Administrator for Air and Medicare’s assignment rules, suppliers alternatives and, if regulation is Radiation. were required to accept the Medicare necessary, to select regulatory [FR Doc. 02–10730 Filed 4–30–02; 8:45 am] allowed amount as payment-in-full. approaches that maximize net benefits BILLING CODE 6560–50–P Under the proposed rule, Medicare (including potential economic, payment would have been made to the environmental, public health and safety supplier as if the DME were DME effects, distributive impacts, and without the upgrade features. The equity). A regulatory impact analysis DEPARTMENT OF HEALTH AND beneficiary purchasing or renting the (RIA) must be prepared for major rules HUMAN SERVICES upgraded DME would pay the supplier with economically significant effects an amount equal to the difference ($100 million or more in any 1 year). Centers for Medicare & Medicaid between the supplier’s charge for the The RFA requires agencies to analyze Services upgraded DME and the amount paid by options for regulatory relief of small Medicare for the DME without the businesses. For purposes of the RFA, 42 CFR Part 414 upgraded features. small entities include small businesses, We are withdrawing this proposed nonprofit organizations and government [CMS–1084–WN] rule because we recently implemented a agencies. Most hospitals and most other process by which suppliers may bill on providers and suppliers are small RIN 0938–AK50 an assignment basis for upgraded DME. entities, either by nonprofit status or by The supplier can now use Advance having revenues of $5 to $25 million in Medicare Program; Payment for Beneficiary Notice (ABN), based on any 1 year. For purposes of the RFA, all Upgraded Durable Medical Equipment; section 1879 of the Social Security Act suppliers of DME are considered to be Withdrawal (the Act), to inform beneficiaries they small entities. Individuals and States are may be responsible for payment for not included in the definition of a small AGENCY: Centers for Medicare & items since the supplier expects entity. Medicaid Services (CMS), HHS. Medicare payment for these items to be In addition, section 1102(b) of the Act ACTION: Proposed rule; withdrawal. denied. Under the ABN process, the requires us to prepare a regulatory supplier would be permitted to bill on impact analysis if a rule may have a SUMMARY: This document withdraws all an assigned or unassigned basis for the significant impact on the operations of provisions of the proposed rule item that would be covered by a substantial number of small rural pertaining to upgraded durable medical Medicare. The supplier would bill the hospitals. This analysis must conform to equipment (DME) that we published in beneficiary the difference between the provisions of section 603 of the the Federal Register on April 27, 2000. Medicare’s allowed amount and the cost RFA. For purposes of section 1102(b) of The proposed rule was based on a of the upgraded feature. The ABN the Act, we define a small rural hospital discretionary provision of the Balanced nondiscretionary authority is broader as a hospital that is located outside of Budget Act (BBA) of 1997. We solicited than section 4551(c) of the BBA of 1997. a Metropolitan Statistical Area and has comments on a methodology that would Therefore, we are not implementing fewer than 100 beds. have permitted suppliers to charge section 4551(c) of the BBA. Section 202 of the Unfunded Medicare beneficiaries more than the Mandates Reform Act of 1995 also Medicare allowed payment amount for II. Regulatory Impact Statement requires that agencies assess anticipated certain upgraded DME and bill the We have examined the impacts of this costs and benefits before issuing any Medicare program on an assignment rule as required by Executive Order rule that may result in expenditure in basis. 12866 (September 1993, Regulatory any 1 year by State, local, or tribal DATES: The proposed rule published on Planning and Review) and the governments, in the aggregate, or by the April 27, 2000 at 65 FR 24666 is Regulatory Flexibility Act (RFA) private sector, of $110 million. withdrawn. (September 19, 1980 Pub. L. 96–354), This document withdraws all section 1102(b) of the Social Security provisions of the proposed rule FOR FURTHER INFORMATION CONTACT: Act, the Unfunded Mandates Reform pertaining to upgraded durable medical William Long, (410) 786–5655. Act of 1995 (Pub. L. 104–4), and equipment (DME) that we published in SUPPLEMENTARY INFORMATION: Executive Order 13132. Executive Order the Federal Register on April 27, 2000.
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This withdrawal document will not Dated: November 21, 2001. may also be purchased from the have an impact of $110 million or more Thomas A. Scully, Commission’s copy contractor, Qualex annually. Neither is this document Administrator, Centers for Medicare & International, Portals II, 445 12th Street, expected to impose an unfunded Medicaid Services. SW, Room CY-B402, Washington, D.C. mandate on States exceeding $110 Approved: February 22, 2002. 20554, telephone 202–863–2893, million annually. Therefore, we have Tommy G. Thompson, facsimile 202–863–2898, or via e-mail not prepared an analysis of cost and Secretary. [email protected]. Provisions of the benefits as required by E.O. 12866 and [FR Doc. 02–10648 Filed 4–26–02; 12:04 pm] Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members the Unfunded Mandates Act for rules BILLING CODE 4120–01–P with significant economic impacts or of the public should note that from the that impose significant unfunded time a Notice of Proposed Rule Making is issued until the matter is no longer mandates on States. Also, we believe FEDERAL COMMUNICATIONS subject to Commission consideration or this withdrawal document will have COMMISSION court review, all ex parte contacts are very little direct impact on small 47 CFR Part 73 prohibited in Commission proceedings, entities as defined under the RFA or on such as this one, which involve channel small rural hospitals as defined under [DA 02–908; MB Docket No. 02–58; RM– allotments. See 47 CFR 1.1204(b) for section 1102(b) of the Social Security 10415) rules governing permissible ex parte Act. For these reasons, we are not contacts. For information regarding preparing analyses for either the RFA or Radio Broadcasting Services; Shafter, CA. proper filing procedures for comments, section 1102(b) of the Act because we See 47 CFR 1.415 and 1.420. have determined, and we certify, that AGENCY: Federal Communications List of Subjects in 47 CFR this rule will not have a significant Commission. economic impact on a substantial ACTION: Proposed rule. Radio Broadcasting number of small entities or a significant Federal Communications Commission. SUMMARY: This document requests impact on the operations of a substantial John A. Karousos, number of small rural hospitals. comment on a Petition for Rule Making filed on behalf of American Media Assistant Chief, Audio Division, Office of Executive Order 13132 establishes General of Texas, Inc., licensee of Broadcast License Policy, Media Bureau. certain requirements that an agency Station KCOO, Channel 282A, Shafter, [FR Doc. 02–10786 Filed 4–30–02; 8:45 am] must meet when it promulgates a California, requesting the allotment of BILLING CODE 6712–01–P proposed rule (and subsequent final Channel 226A to Shafter, California, in rule) that imposes substantial direct order to permit it to modify its license requirement costs on State and local to specify operation on Channel 226A. DEPARTMENT OF COMMERCE governments, preempts State law, or This is necessary because American otherwise has Federalism implications. Media General of Texas, Inc. is losing its National Oceanic and Atmospheric This document will not have a transmitter site and has been unable to Administration substantial effect on State or local locate an available site that would governments. accommodate operation on Channel 50 CFR Part 600 In accordance with the provisions of 282A. The coordinates for the Channel [I.D. 040202C] Executive Order 12866, this regulation 226A allotment at Shafter, California, Magnuson-Stevens Act Provisions, was reviewed by the Office of would be 35–30–06 and 119–16–18. Subpart H; General Provisions for Management and Budget. DATES: Comments must be filed on or before June 10, 2002, and reply Domestic Fishing; Correction III. Collection of Information comments on or before June 25, 2002. AGENCY: National Marine Fisheries Requirements ADDRESSES: Secretary, Federal Service (NMFS), National Oceanic and Communications Commission, As stated above, we are withdrawing Atmospheric Administration (NOAA), Washington, DC, 20554. In addition to Commerce. this proposed rule because we recently filing comments with the FCC, ACTION: Correction of notice of receipt of implemented the ABN process by which interested parties should serve the petition for rulemaking and request for suppliers may bill on an assignment petitioner’s counsel, as follows: Vincent comments. basis for upgraded DME. The supplier J. Curtis, Jr., c/o Fletcher, Heald & can now use ABN to inform Hildreth, 1300 North 17th Street, SUMMARY: In the April 18, 2002, Federal beneficiaries they may be responsible Arlington, Virginia, 22209–3801. Register, NMFS announced receipt of a for payment for items since the supplier FOR FURTHER INFORMATION CONTACT: petition for rulemaking under the expects Medicare payment for these Robert Hayne, Mass Media Bureau (202) Administrative Procedure Act. Oceana, items to be denied. On October 12, 2001 418–2177. a non-governmental organization and February 19, 2002 we published SUPPLEMENTARY INFORMATION: This is a concerned with the environmental notices in the Federal Register synopsis of the Commission’s Notice of health of the oceans, petitioned the U.S. announcing that we are seeking Proposed Rule Making in MB Docket Department of Commerce to promulgate Paperwork Reduction Act reapproval of No. 02–58, adopted April 17, 2002, and immediately a rule to establish a the ABN, approved under OMB number released April 19, 2002. The full text of program to count, cap, and control 0938–0566, with a current expiration this Commission action is available for bycatch in U.S. fisheries. The date of April 31, 2002. inspection and copying during normal announcement indicated under (Catalog of Federal Domestic Assistance business hours in the FCC Reference ‘‘ADDRESSES’’ where copies of the Program No. 93.774, Medicare— Information Center at Portals II, CY- petition could be obtained, and under Supplementary Medical Insurance Program) A257, 445 12th Street, SW, Washington, ‘‘SUPPLEMENTARY INFORMATION’’ that a D.C. The complete text of this action copy of the petition was available at a
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NMFS website. An error in the NMFS Endangered Species Act, the Marine copy of the petition by contacting NMFS web address is corrected by this Mammal Protection Act, and the at the above address.’’ document. Migratory Bird Treaty Act. The petition This corrects the error in the website ADDRESSES: Copies of the petition are seeks a regulatory program that includes address. a workplan for observer coverage available, and written comments on the The Assistant Administrator for need for such a regulation, its sufficient to provide statistically reliable bycatch estimates in all fisheries, the Fisheries has determined that the objectives, alternative approaches, and petition contains enough information to any other comments may be addressed incorporation of bycatch estimates into restrictions on fishing, the placing of enable NMFS to consider the substance to William T. Hogarth, Ph.D., Assistant of the petition. NMFS will consider Administrator for Fisheries, NMFS, limits on directed catch and bycatch in each fishery with provision for closure public comments received in 1315 East-West Highway, Silver Spring, determining whether or not to proceed MD 20910; telephone 301–713–2239. upon attainment of either limit, and bycatch assessment and reduction plans with the development of the regulations Comments may also be sent via fax to requested by Oceana. To this end, 301–713–1193, attn: Val Chambers. as a requirement for all commercial and recreational fisheries. NMFS, by separate letter, has requested Comments will not be accepted if each of the Regional Fishery submitted via e-mail or Internet. Correction Management Councils to assist in FOR FURTHER INFORMATION CONTACT: Val In proposed rule FR Doc. 02–9462 evaluating this petition. Upon Chambers, telephone 301–713–2341, fax published on April 18, 2002, (67 FR determining whether or not to initiate 301–713–1193, e-mail 19154) make the following correction. the requested rulemaking, the Assistant [email protected]. On page 19154, under ‘‘SUPPLEMENTARY Administrator for Fisheries, NOAA, will SUPPLEMENTARY INFORMATION: Notice of INFORMATION’’, in the third column, the publish a notice of the agency’s final receipt of the petition for rulemaking as first complete paragraph is corrected to disposition of the Oceana petition filed by Oceana was published in the read as follows: request in the Federal Register. Federal Register on April 18, 2002 (67 ‘‘The exact and complete assertions of Dated: April 25, 2002. FR 19154). The petition asserts that nonconformance with Federal law are NMFS is not meeting its legal contained in the text of Oceana’s John H. Dunnigan, obligations for bycatch of birds, petition which is available via internet Director, Office of Sustainable Fisheries, mammals, turtles, and fish under the at the following NMFS web address: National Marine Fisheries Service. Magnuson-Stevens Fishery http://www.nmfs.noaa.gov/sfa/sfweb/ [FR Doc. 02–10757 Filed 4–26–02; 4:30 pm] Conservation and Management Act, the index.htm. Also, anyone may obtain a BILLING CODE 3510–22–S
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Notices Federal Register Vol. 67, No. 84
Wednesday, May 1, 2002
This section of the FEDERAL REGISTER DEPARTMENT OF AGRICULTURE (Act)(7 U.S.C. 7411 et seq.) authorizes contains documents other than rules or the establishment and implementation proposed rules that are applicable to the Agricultural Marketing Service of a lamb promotion, research, and public. Notices of hearings and investigations, information program. Pursuant to the [No. LS–02–07] committee meetings, agency decisions and Act, a proposed Lamb Promotion, rulings, delegations of authority, filing of petitions and applications and agency Lamb Promotion, Research, and Research, and Information Order (Order) statements of organization and functions are Information: Certification of was published in the Federal Register examples of documents appearing in this Organizations for Eligibility To Make on September 21, 2001 (66 FR 48764). section. Nominations to the Lamb Promotion, The final Order was published in the Research, and Information Board Federal Register on April 11, 2002 (67 FR 17848). The Order provides for the AGENCY FOR INTERNATIONAL AGENCY: Agricultural Marketing Service, establishment of a 13-member Board DEVELOPMENT USDA. that will consist of 6 producers, 3 ACTION: Notice. feeders—producers and feeders Draft Report on Information Quality representing regions east and west of the Guidelines SUMMARY: Notice is hereby given that Mississippi river—1 seedstock the Department of Agriculture’s (USDA) producer, and 3 first handlers appointed AGENCY: U.S. Agency for International Agricultural Marketing Service (AMS) is by USDA. The duties and Development (USAID) accepting applications from State, responsibilities of the Board are regional, and national lamb producer, provided under the Order. ACTION: Notice. seedstock producer, feeder, and first The Order provides that USDA shall handler organizations or associations certify or otherwise determine the SUMMARY: USAID’s draft Report on which desire to be certified as eligible eligibility of any State, regional, or Information Quality Guidelines (Report) to nominate lamb producers, seedstock national lamb producer, seedstock is available for public comment on the producers, lamb feeders, or first producer, feeder, or first handler USAID homepage: http:// handlers of lamb or lamb products for organizations or associations that meets www.usaid.gov/about/info_quality/. appointment to the Lamb Promotion, the eligibility criteria established under Research, and Information Board the Order. Those organizations that DATES: Please submit comments on or (Board). To nominate a producer, meet the eligibility criteria specified before May 31, 2002. seedstock producer, feeder, or first under the Order will be certified as ADDRESSES: You may submit your handler member to the Board, eligible to nominate members for comments directly from the above Web organizations must first be certified by appointment to the Board. Those site. You may also mail written USDA. Notice is also given that organizations should ensure that the comments to Margaret Alter Miller, M/ upcoming appointments are anticipated nominees represent the interests of AA, 6.12–036 RRB, USAID, 1300 and that during a period to be producers, seedstock producers, feeders, Pennsylvania Avenue, NW., established by USDA, nominations will and first handlers. Washington, DC 20523–7600 or email be accepted from eligible organizations. The Order provides that the members her at [email protected]. DATES: Applications for certification of the Board shall serve for terms of 3 must be received by close of business years, except that appointments to the FOR FURTHER INFORMATION CONTACT: May 31, 2002. initially established Board shall be Margaret Alter Miller; telephone 202– proportionately for 1-, 2-, and 3-year ADDRESSES: Certification forms as well 712–1054; telefax (202) 216 -3053; email terms. No person may serve more than as information regarding the [email protected]. two consecutive 3 year terms. USDA certification and nomination procedures will announce when nominations will SUPPLEMENTARY INFORMATION: may be requested from Marlene M. Pursuant be due from eligible organizations and Betts, Acting Chief; Marketing Programs to OMB Guidelines for Ensuring and when any subsequent nominations are Branch, Room 2627–S; Livestock and Maximizing the Quality, Objectivity, due when a vacancy does or will exist. Seed Program; AMS, USDA; STOP 0251; Utility and Integrity of Information The Board composition is as follows: Disseminated by Federal Agencies, 1400 Independence Avenue, SW.; USAID has prepared a draft Report and Washington, D.C. 20250–0251 or Unit/Region Members has posted it on its website for public obtained via the Internet at http:// comment. www.ams.usda.gov/lsg/mpb/rp- Producer Members: Region 1— lamb.htm. East of the Mississippi ...... 2 Dated: April 25, 2002. Producer Members: Region 2— FOR FURTHER INFORMATION CONTACT: Richard C. Nygard, West of the Mississippi ...... 2 Marlene M. Betts, Acting Chief, USDA Appointed Producer Deputy CIO for Policy. Marketing Programs Branch on 202/ Members ...... 2 [FR Doc. 02–10699 Filed 4–30–02; 8:45 am] 720–1115, via facsimile on 202/720– Feeder Members: Region 1— BILLING CODE 6116–01–P 1125, or via e-mail at East of the Mississippi ...... 1 [email protected]. Feeder Members: Region 2— West of the Mississippi ...... 1 SUPPLEMENTARY INFORMATION: USDA Appointed Feeder Mem- The Commodity Promotion, Research, ber ...... 1 and Consumer Information Act of 1996 Seedstock Producer Member ... 1
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Unit/Region Members Dated: April 25, 2002. oonf/design planning.html. The A.J. Yates, Regional Forester for the Southern First Handler Members ...... 3 Administrator, Agricultural Marketing Region, located at 1720 Peachtree Road, Service. NW, Atlanta, Georgia 30309, is the Total ...... 13 [FR Doc. 02–10677 Filed 4–30–02; 8:45 am] Responsible Official. Any eligible producer, seedstock BILLING CODE 3410–02–P Affected Counties: This NOI affects producer, feeder, or first handler the following counties: Ashley, Garland, Hot Spring, Howard, Logan, organization that is interested in being DEPARTMENT OF AGRICULTURE certified to nominate producers, Montgomery, Perry, Pike, Polk, Saline, Scott, Sebastian, and Yell, Arkansas; seedstock producers, feeders, or first Forest Service handlers for appointment to the Board, and LeFlore and McCurtain, Oklahoma. must complete and submit an official Revised Land and Resource SUPPLEMENTARY INFORMATION: ‘‘Application for Certification of Management Plan for the Ouachita A. Background Information Organization,’’ form. That form must be National Forest in Arkansas and received by close of business May 31, Oklahoma 1. The Role of Forest Plans 2002. Only those organizations that meet AGENCY: Forest Service, USDA. National Forest System resource the criteria for certification of eligibility ACTION: Notice of Intent to prepare allocation and management decisions specified under § 1280.206(b) under the Environmental Impact Statement. are made in two stages. The first stage Order are eligible for certification. In is the Forest Plan, which involves the SUMMARY: The purpose of this notice is certifying an organization, the following establishment of management direction to inform the public that (pursuant to 16 will be considered: by allocating lands and resources within U.S.C. 1604(f)(5) and 36 CFR 219.10(g)) the plan area to various uses or (1) The geographic territory covered the Regional Forester for the Southern by the active membership of the conditions through management areas Region of the USDA Forest Service and management prescriptions. The organization; intends to prepare an Environmental (2) The nature and size of the active second stage is plan implementation Impact Statement (EIS) to accompany a membership of the organization, through approval of project decisions. revision of the Land and Resource including the number of active Forest Plans do not compel the agency Management Plan (Forest Plan) for the producers, seedstock producers, feeders, to undertake any site-specific projects; Ouachita National Forest. The existing or first handlers represented by the rather, they establish overall goals and Forest Plan was approved on April 1, organization; objectives (or desired resource 1986. Since then, 37 amendments have (3) Evidence of stability and conditions) that the individual National been completed, including a significant permanency of the organization; Forest will strive to meet. Forest Plans (4) Sources from which the operating amendment that resulted in publication also establish limitations on what funds of the organizations are derived; of the 1990 Amended Land and actions may be authorized and what (5) The functions of the organization; Resource Management Plan. We now conditions must be met as part of and invite comments and suggestions from project-level decision-making. (6) The ability and willingness of the American Indian tribes, Federal The primary decisions made in a organization to further the purpose and agencies, state and local governments, Forest Plan include: (1) Establishment of objectives of the Act. individuals and organizations on the forest-wide multiple-use goals and In addition, the primary consideration scope of the analysis to be included in objectives (36 CFR 219.11(b)); (2) in determining the eligibility of an the draft EIS (DEIS) (40 CFR 1501.7). establishment of forest-wide organization will be: DATES: Comments on this Notice of management requirements (36 CFR (1) The membership of the Intent (NOI) and, specifically, on the 219.13 to 219.27); (3) establishment of organization consists primarily of scope of the analysis to be included in multiple-use prescriptions and producers, seedstock producers, feeders, the EIS, should be received in writing associated standards for each or first handlers who market or handle by August 2, 2002. The agency expects management area (36 CFR 219.11(c)); (4) a substantial quantity of lamb or lamb to file the DEIS with the Environmental determination of land that is suitable for products; and Protection Agency (EPA) and make it the production of timber (16 U.S.C. (2) A primary purpose of the available for public comment in 2004. 1604(k) and 36 CFR 219.14); (5) organization is in the production or The Agency expects to file the final EIS establishment of the allowable sale marketing of lamb and lamb products. (FEIS) in September of 2005. quantity for timber within a time frame All newly certified organizations will ADDRESSES: Send written comments to specified in the plan (36 CFR 219.16); be notified in writing of the beginning Forest Plan, Ouachita National Forest, (6) establishment of monitoring and and ending dates of the established P.O. Box 1270, Hot Springs, AR 71902. evaluation requirements (36 CFR nomination period and will be provided Electronic mail should include ‘‘FP 219.11(d)); (7) recommendations with required nomination forms. Revision’’ in the subject line and be sent concerning roadless areas that Congress The information collection to: ouachita [email protected]. could designate as wilderness (36 CFR requirements referenced in this notice FOR FURTHER INFORMATION CONTACT: 219.17); and (8) where applicable, has been approved by the Office of Ouachita National Forest: Planning designation of those lands Management and Budget (OMB) under Team Leader Bill Pell (phone 501–321– administratively available for oil and the provisions of the Paperwork 5320; TDD 501–321–5307). Electronic gas leasing (36 CFR 228.102 (d) and (e)). Reduction Act of 1995 (44 U.S.C., mail should include ‘‘FP Revision’’ in The authorization of site-specific Chapter 35) and have been assigned the subject line and be sent to: ouachita activities within a plan area occurs OMB No. 0581–0198, except Board [email protected]. Information about Forest through project decision-making, the nominees information form has been Plan revision and future opportunities second stage of forest planning. Project assigned OMB No. 0505–0001. to participate will be posted at the decision-making must comply with Authority: 7 U.S.C. 7411–7425. following website: http://www.fs.fed.us/ NEPA procedures and must include a
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determination that the project is management of the National Forest during the scoping period, see Section consistent with the Forest Plan. interrelated within the larger context of F of this NOI. (Note: The above citations are from the Ozark-Ouachita Highlands area. B. Purpose and Need for Action the 1982 36 CFR 219 planning This Assessment, however, is not a regulations. See also section G.) ‘‘decision document,’’ and it did not The purpose for revising the Forest Plan derives from the requirements for 2. The Beginning of the Forest Plan involve the National Environmental land and resource management Revision Effort for the Oauchital Policy Act (NEPA) process. The Southern Forest Resource planning in the National Forest National Forest Assessment was initiated in May 1999 Management Act and its implementing For this Forest Plan revision, an effort to examine the status, trends, and regulations, which are contained in 36 was made to first define the current potential future of southern forests. The CFR 219. According to 36 CFR situation and estimate an ‘‘initial need USDA Forest Service led the effort in 219.10(g), Forest Plans are ordinarily for change.’’ A key part of defining the cooperation with the U.S. Fish and revised on a 10–15 year cycle. The need current situation was the Ozark- Wildlife Service, EPA, Tennessee Valley to revise this Forest Plan is also driven Ouachita Highlands Assessment, a Authority, and southern States by the changing conditions identified in multi-agency effort in which Ouachita represented by their forestry and fish the Ozark-Ouachita Highlands National Forest employees actively and wildlife agencies. This Assessment Assessment, the Southern Forest participated. On October 16, 1996, a addresses the sustainability of southern Resource Assessment, and ongoing Notice was published in the Federal forest in light of increasing urbanization monitoring and evaluation results Register (Vol. 61. No. 201) that and timber harvests, changing specific to the Ouachita National Forest. identified the relationships between the technologies (including chip mills), Ozark-Ouachita Highlands Assessment forest pests, climatic changes, and other C. Preliminary Issues and Forest Plan revisions for the factors that influence the region’s Preliminary issues for the Ouachita National Forest in Arkansas, Missouri, forests. In late 2001, draft reports from National Forest Plan revision focus on and Oklahoma. In addition to reviewing the Southern Forest Resource parts of the current Forest Plan where the results of this broad-scale Assessment were made available on the change may be needed. The preliminary assessment, which were made widely following website: http:// issues were derived from the Ozark- available in early 2000, and the draft www.srs.fs.fed.us/sustain/report/ Ouachita Highlands Assessment, the conclusions of a more recent assessment index.htm. Southern Forest Resource Assessment, (described below), the ‘‘initial need for 4. Relationship of the Forest Plan internal comments from forest change’’ was evaluated in light of the managers, results of monitoring, the results of monitoring and relevant revision for the Ouachita National Forest to revision efforts for the Mark mid-plan review and comments research, public comments received received from the public. The Proposed from 1990 through early 2002, and the Twain and Ozark-St. Francis National Forest Action in section D describes these experience of employees responsible for issues in more detail. implementing the Forest Plan. These Forest plan revision will be evaluations are the basis for the conducted simultaneously on these 1. Ecosystem Health and Sustainability preliminary issues and proposed action National Forests. We anticipate that a a. Changes may be needed in identified in this notice. Additional separate EIS and revised Forest Plan management direction for maintaining issues or topics will be developed as will be produced for each or restoring healthy forest ecosystems in needed to respond to public comments administrative unit. The respective the face of new threats from insect received in response to this NOI and Forest Supervisors have agreed to outbreaks and diseases. (36 CFR 219.27) subsequent scoping efforts. coordinate the revisions to the extent b. Changes may be needed in Forest feasible and practical. The respective Plan direction for maintaining habitats 3. The Ozark-Ouachita Highlands planning teams will work together to for viable populations of all native plant Assessment and the Southern Forest address common issues. and animal species. (36 CFR 219.19) Resource Assessment c. Management standards for the use The USDA Forest Service and many 5. The Role of Scoping in Revising the Land and Resource Management Plan (and/or projected levels) of prescribed other agencies participated in the burning may need to be modified in preparation of the Ozark-Ouachita This NOI includes a description of a light of changing air quality standards. Highlands Assessment, which Proposed Action in terms of preliminary d. Changes in management standards culminated in a final summary report ‘‘needs for change’’ for the revision of and desired conditions for the and four technical reports that were the Forest Plan and preliminary issues transportation system within the made available to the public in early associated with those needed changes. Ouachita National Forest may be needed 2000 (available now at the Forest Plan The Proposed Action entails one or in order to respond to the findings of a address provided near the beginning of more of the plan decisions identified in forest scale roads analysis. (36 CFR this document). This Assessment the ‘‘The Role of Forest Plans.’’ Scoping 212.5) included National Forest System lands to receive public comments on the and private lands within the highlands preliminary issues and proposed action 2. Roadless Areas, Recreation, of Arkansas, Missouri, and Oklahoma. will begin following the publication of Motorized Access The Assessment facilitated this NOI. Comments received during a. Remaining roadless areas need to be ecologically based approaches to public this period will be used to further refine considered for possible wilderness lands management in the Ozark- the preliminary issues that should be recommendation(s). (36 CFR 219.17) Ouachita Highlands by collecting and addressed, the Forest Plan decisions b. Changes may be needed to address analyzing broadscale biological, that need to be analyzed (the ‘‘proposed existing and likely future conflicts physical, social and economic data. The action’’ and ‘‘need for change’’), and the among dispersed recreation activities. Assessment supports the revision of the range of alternatives that will be c. The mix of developed and Forest Plans by describing how the developed. For more information on dispersed recreation opportunities on lands, resources, people and how the public can become involved the forest may need to be reevaluated.
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d. Forest Plan direction concerning insect and disease-caused losses’’ but 2. Roadless Areas, Recreation Needs off-highway vehicle use may need to be does not specifically address oak and Conflicts, Motorized Access changed in light of increasing demands mortality. Although the Forest Plan a. Roadless Areas for and concerns about this recreation addresses desired hardwood activity. components of various management Six inventoried roadless areas within areas in detail, specific mention of a the Ouachita National Forest were 3. Silvicultural Practices desired oak component is found in the identified in the Forest Service’s FEIS, a. Changes may be needed in the management goal statements of only five Roadless Area Conservation, dated standards for implementing different management areas (9, 11, 15, 16, and November 2000. The Forest Plan for the reproduction cutting methods and other 19). Current management direction Ouachita National Forest currently silvicultural practices and the predicted needs to be reviewed in light of the prohibits or strictly limits road levels at which such methods and growing incidence of oak mortality on construction in these six roadless areas, practices will be implemented on the this National Forest. and no timber sales have been planned Ouachita National Forest. in recent years in these areas. These six b. There may be a need to re-examine b. Threatened, Endangered and Species areas and two additional roadless areas the relationships between silvicultural of Viability Concerns in McCurtain Co., Oklahoma, will be practices and desired conditions for the For the most part, the populations of evaluated as potential wilderness areas National Forest. threatened, endangered, and species of during Forest Plan revision per 36 CFR 4. Relationship of National Forest viability concern that occupy portions 219.17. Any other lands meeting the Management to Local Communities and of the Ouachita National Forest (or criteria for inventoried roadless areas Economies. nearby downstream reaches) appear to will also be evaluated. be stable, fluctuating normally, or b. Recreation Opportunities a. Changes may be needed to enable increasing. However, the viability of the National Forest to more fully some of these species or groups of According to Report 4 of the Ozark- support long-term community species (e.g., amphibians, birds) may Ouachita Highlands Assessment, development needs in the vicinity of the need to be reconsidered in light of ‘‘Demand for nearly all categories of Ouachita National Forest. research or monitoring conducted since recreational activities is expected to D. Proposed Action 1990. Another concern is that the increase in the next decade. Researchers Ouachita National Forest continues to project that the increase in the Since 1990, Forest Plan amendments, fall short of providing the amounts of Highlands will be greater than the annual monitoring reports, a five-year early seral habitat that are called for by national average. Recreational activities review of plan implementation, and the current Forest Plan. Over the past with the largest projected increases in working with the public and other decade, the shortfall has risen to nearly both percentage of the population and agencies have provided the Ouachita 80,000 acres. The viability of species number of people participating include National Forest with valuable dependent on such habitats needs to be sightseeing, picnicking, visiting information about changes that are reevaluated. historical sites, and visiting beaches or needed in the existing Forest Plan. This other water sites.’’ Horseback riding and initiates the determination of the need c. Prescribed Burning off-highway vehicle use are also to establish or change management EPA will soon establish new National expected to increase. These demands direction as required under the NFMA Ambient Air Quality Standards for and uses may increase the rate of user regulations at 36 CFR 219.12(e)(5). The ozone and particulate matter 2.5 conflicts and environmental problems. Proposed Action is that revision of the microns and smaller in size. One or In addition to the kinds of conflicts and Forest Plan for the Ouachita National more ‘‘non-attainment’’ areas for one or problems associated with dispersed Forest focus primarily on the following both of these pollutants may be recreation activities, there are major ‘‘needs for change’’. designated near or partially concerns about developed recreation 1. Ecosystem Health and Sustainability encompassing the Ouachita National areas on the Ouachita National Forest. Forest. Projections of desired and Because of their age and heavy use, a. Oak Decline and Oak Mortality feasible levels of annual prescribed many of these recreational facilities are Oak decline and oak mortality are burning may need to be adjusted based deteriorating. Lack of funds to maintain occurring on an estimated 30,000 acres on these new circumstances. and repair them may point to a need to of hardwood forests on national forest close some areas and strictly limit d. Transportation System lands in Montgomery, Polk, Scott and designation of new ones. Logan Counties, Arkansas. Although New direction for National Forest some oak mortality has been observed transportation system planning was c. Off-Highway Vehicle Use over a wide variety of sites, significant issued in January of 2001. In May, an Cross-country off-highway vehicle mortality is primarily occurring in oak- interim directive delayed (OHV) travel is presently allowed over hickory stands at higher elevations on implementation of the new regulations large portions of the Ouachita National north-facing slopes. These stands are until 2002. The Ouachita National Forest. Areas of concentrated use where comprised of older trees (approaching Forest will start implementing the new OHV impacts pose persistent problems 100 years of age), have high basal areas, direction concerning roads analysis this include Wolf Pen Gap, Little Missouri and exist on relatively poor sites. There year, including initiation of a forest- River watershed, the Lake Ouachita are approximately 500,000 acres of wide roads analysis. Doing so will bring area, Poteau Mountain Wilderness, and hardwood and hardwood-pine forests even greater focus on roads maintenance some power line rights of way. There is on the Forest, however, and all are needs, opportunities to obliterate no common understanding (externally potentially at risk for oak decline; the unneeded roads, and public interest in or internally) of what constitutes area affected by excessive oak mortality motorized access to this national forest. ‘‘resource damage’’ due to OHVs (i.e., is expected to increase. The decision to revise the forest plan what is and isn’t acceptable). User The Forest Plan provides broad goals must be informed by a roads analysis conflicts, such as those experienced and management standards to ‘‘reduce (36 CFR 212.5). when some hunters and hikers
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encounter OHV riders are increasing, as f. Review current direction for issues, management concerns, resource is demand for OHV access. Current monitoring and evalaution and bring it management opportunities, and plan Forest Plan direction includes in line with current needs. decisions. Public participation will be guidelines to ‘‘provide for off-road g. Update the research needs solicited by notifying in person and/or vehicle use’’ and ‘‘designate special identified in the 1990 Amended Plan. by mail, known interested and affected areas for ORV use.’’ More specific h. Evaluate watershed health and publics. News releases will be used to guidance many be needed. consider changes in standards and give the public general notice, and guidelines to address priority needs. public scoping meetings will be 3. Silvicultural Practices i. Clarify standards for identifying conducted at several locations. Public When uneven-aged and irregular lands suitable for timber production (as participation will be sought throughout even-aged management practices were part of the management direction for the plan revision process and will be implemented on portions of the certain management areas) and review important at several points along the Ouachita National Forest in the early the designation of lands not suited for way. The first opportunity to comment 1990s, there was little scientific timber production (36 CFR 219.14(d)); will be during the scoping process (40 information concerning the feasibility or for the Ouachita National Forest, the CFR 1501.7). Scoping includes environmental consequences of such required ten-year review of lands not identifying additional potential issues practices. Now, most forest managers suitable for timber production is being (other than those previously described). have 10 or more years of experience done in this revision. The second step is to identify which with these silvicultural methods. j. Re-determine the allowable sale issues are significant and which have Moreover, multi-disciplinary research quantity (ASQ) for timber. either been covered by prior focused on stand-level silvicultural k. Determine whether changes are environmental review or are non- treatments (alternatives to clearcutting) needed in definitions and forest plan significant for revision. the list of has been conducted on the Ouachita direction for riparian areas and significant issues will be available for National Forest since 1991. Post- streamside management zones. public review and comment before the treatment results will be available l. Determine whether changes are DEIS is prepared. Significant issues are during Forest Plan revision and may needed in management direction for used to develop and explore Forest Plan point to needed changes in the Forest existing wild and scenic river corridors. alternatives. Finally, the potential Plan. The mix and projected annual use m. Review forest plan direction environmental effects of the proposed of silvicultural practices may need to be concerning old growth to determine action and alternatives (i.e., direct, reexamined. whether it is consistent with Southern indirect, and cumulative effects) will be Region direction. thoroughly analyzed and disclosed in 4. Relationship of National Forest E. Preliminary Alternatives the DEIS, which will be available for Management to Local Communities and public comment for at least 90 days. As Economies The actual alternatives presented in part of the first step in scoping, a series The National Forest-Dependent Rural the DEIS will portray a full range of of public opportunities have been Communities Economic Diversification responses to the significant issues. The scheduled to explain the planning Act of 1990 directs the Forest Service to DEIS will examine the effects of process and provide an opportunity for help national forest-dependent implementing strategies to achieve public input. Following are the communities organize, plan, and different desired conditions and will proposed locations and dates for these implement actions that diversify local develop possible management objectives meetings: Broken Bow, Oklahoma, June economies and to ensure that USDA- and opportunities that would move the 3, 2002; Poteau, Oklahoma, June 6, funded community action plans are forest toward those desired conditions. 2002; Hot Springs, Arkansas, June 10, consistent with national forest land and A preferred alternative will be identified 2002; Mena, Arkansas, June 11, 2002. in the DEIS. The range of alternatives resource management plans. There may G. Planning Regulations be a need to reexamine the relationships presented in the DEIS will include one between national forest management that continues current management The Department of Agriculture direction and local community direction and others that will address published new planning regulations in development (including economic the range of issues developed in the November 2000. Concerns regarding the development) needs. scoping process. ability of the agency to implement these regulations prompted a review, and F. Involving the Public 5. Other Needs for Change another revision of these regulations is In addition to addressing the needs The objective in this process for now being developed. On May 10, 2001, for change described in parts D.1. public involvement is to create an Secretary Veneman signed an interim through D.4., the Proposed Action also atmosphere of openness where all final rule allowing Forest Plan includes the following: members of the public feel free to share amendments or revisions initiated a. Reevaluate management area information with the Forest Service and before May 9, 2002, to proceed under definitions and boundaries. its employees on a regular basis. All the new (November 2000) planning rule b. Reevaluate road density standards parts of this process will be structured or under the 1982 planning regulations. in management area prescriptions. to maintain openness and trust. The The Ouachita National Forest Plan c. Replace the current Visual Forest Service is seeking information, revision will be initiated under the 1982 Management System with the national comments, and assistance from tribal planning regulations. Scenery Management System and governments, Federal, State and local consider the need for new visual agencies, and other individuals and H. Release and Review of EIS objectives. organizations that may be interested in The DEIS is expected to be filed with d. Examine and update land or affected by the proposed action. This the EPA and be available for public ownership adjustment needs across the input will be utilized in the preparation comment by September 2004. At that Forest. of the DEIS. The range of alternatives to time, the EPA will publish a notice of e. Consider any change needed to be considered in the EIS will be based availability of the DEIS in the Federal better address tribal rights and needs. on the identification of significant Register, The comment period will be
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90 days from the date the EPA publishes Dated: April 25, 2002. Affected Counties: This NOI affects the notice of availability in the Federal R. Gary Pierson, Baxter, Benton, Conway, Crawford, Register. Acting Deputy Regional Forester. Franklin, Johnson, Lee, Logan, Madison, The Forest Service believes, at this [FR Doc. 02–10779 Filed 4–30–02; 8:45 am] Marion, Newton, Phillips, Pope, Searcy, early stage, it is important to give BILLING CODE 3410–11–M Stone, Van Burden, Washington, and reviewers notice of several court rulings Yell counties in Arkansas. related to public participation in the SUPPLEMENTARY INFORMATION: DEPARTMENT OF AGRICULTURE environmental review process. First, A. Background Information reviewers of the DEIS must structure Forest Service their participation in the environmental 1. The Role of Forest Plans review of the proposal so that it is Revised Land and Resource National Forest System resource meaningful and alerts an agency to the Management Plan for the Ozark-St. allocation and management decisions reviewer’s position and contentions. Francis National Forests in Arkansas are made in two stages. The first stage Vermont Yankee Nuclear Power Corp. v. AGENCY: Forest Service, USDA. is the Forest Plan, which involves the NRDC. 435 U.S. 519, 553 (1978). Also ACTION: Notice of intent to prepare an establishment of management direction environmental objections that could be environmental impact statement. by allocating lands and resources within raised at the DEIS stage but that are not the plan area to various uses or raised until after completion of the FEIS SUMMARY: The USDA Forest Service conditions through management areas may be waived or dismissed by the intends to prepare an environmental and management prescriptions. The courts. City of Angoon v. Hodel, 803 impact statement (EIS) for revising the second stage is plan implementation F.2d 1016, 1022 (9th Cir. 1986) and Ozark-St. Francis National Forests Land through approval of project decisions. Wisconsin Heritages, Inc. v. Harris, 490 and Resource Management Plan forest Plans do not compel the agency F.Supp. 1334, 1338 (E.D. Wis. 1980). (hereinafter referred to as the Forest to undertake any site-specific projects; Because of these court rulings, it is very Plan) pursuant to 16 U.S.C. 1604(f)(5) rather, they establish overall goals and important that those interested in this and USDA Forest Service National objectives (or desired resource proposed action participate by the close Forest System Land and Resource conditions) that the individual national of the 90-0day comment period so that Management Planning regulations. The forest will strive to meet. Forest Plans substantive comments and objections revised Forest Plan will supersede the also establish limitations on what are made available to the Forest Service current Forest Plan, which the Regional actions may be authorized and what at a time when it can meaningfully Forester approved July 29, 1986, and conditions must be met during project has been amended 11 times. consider them and respond to them in decision-making. The agency invites written comments the FEIS. To assist the Forest Service in and suggestions within the scope of the Agency decisions in Forest Plans do identifying and considering issues and analysis described below. In addition, the following: concerns on the proposed actions, the agency gives notice that a full a. Establish forest-wide multiple-use comments on the DEIS should be as environmental analysis and decision- goals and objectives (36 CFR 219.11(b)). specific as possible. It is also helpful if making process will occur on the b. Establish management areas and comments refer to specific pages or proposal so that interested and affected chapters of the DEIS. Comments may management area direction through the people are aware of how they may application of management also address the adequacy of the DEIS participate and contribute to the final prescriptions and multiple-use or the merits of the alternatives decision. prescriptions (36 CFR 219.11(c)). formulated and discussed in the DATES: Comments on this Notice of c. Establish monitoring and statements. Reviewers may wish to refer Intent (NOI) and, specifically, on the to the Council on Environmental evaluation requirements (36 CFR scope of the analysis to be included in 219.11(d)). Quality Regulations for implementing the EIS, should be received in writing the procedural provisions of the NEPA by August 2, 2002. The agency expects d. Establish forest-wide management at 40 CFR 1503.3 in addressing these to file the draft EIS (DEIS) with the requirements (standards and guidelines) points. After the comment period on the Environmental Protection Agency (EPA) (36 CFR 219.13 to 219.27). DEIS ends, the comments will be and make it available for public e. Determine the suitability and analyzed, considered, and responded to comment in 2004. The Agency expects potential capability of lands for resource by the Forest Service in preparing the to file the final EIS (FEIS) in September production. This includes identifying FEIS. The FEIS is scheduled to be of 2005. lands not suited for timber production completed in September 2005. the ADDRESSES: Submit written comments and establishment of allowable sale Responsible Official (the Regional to: Ozark-St. Francis National Forests, quantity (36 CFR 219.14). Forester, Southern Region, 1720 Planning, 605 West Main Street, f. Where applicable, recommend Peachtree Road, NW., Atlanta, Georgia Russellville, Arkansas 72801. Electronic official designation of special areas such 30309) will consider the comments, mail should be sent to: as wilderness (36 CFR 219.17) and wild responses, and environmental [email protected] and scenic rivers to Congress. consequences discussed in the FEIS FOR FURTHER INFORMATION CONTACT: g. Where applicable, designate those together with all applicable laws, Deryl Jevons, Forest Planning Tam lands administratively available for oil regulations, and policies in making a Leader, at 479–968–2354. Information and gas leasing and, when appropriate, decision regarding revision. The will also be posted on the forest web authorize the Bureau of Land Responsible Official will document the page at http: //www.fs.fed.us/oonf/ Management to offer specific lands for decision and reasons for the decision in ozark/planning/planning. The Regional leasing. (36 CFR 228.102(d) and (e)). a Record of Decision. This decision may Forester for the Southern Region located Note: The above citations are from the 1982 be subject to appeal in accordance with at 1720 Peachtree Street, NW., Atlanta, 36 CFR 219 planning regulations. See also 36 CFR 217. GA 30309, is the Responsible Official. section G.
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2. The Beginning of the Forest Plan The Southern Forest Resource planning in the National Forest Revision Effort for the Ozark-St. Francis Assessment was initiated in May 1999 Management Act (NFMA) and the National Forests to examine the status, trends, and implementing regulations contained in For the Forest Plan revision, an effort potential future of southern forests. The 36 CFR 219. According to 36 CFR was made to first define the current USDA Forest Service led the effort in 219.10(g), Forest Plans are ordinarily situation and estimate the ‘‘need for cooperation with the U.S. Fish and revised on a 10–15 year cycle. The need change.’’ A key part of defining the Wildlife Service, EPA, Tennessee Valley to revise this Forest Plan is also driven current situation was the Ozark- Authority, and southern States by the changing conditions identified in Ouachita Highlands Assessment. On represented by their forestry and fish the Ozark-Ouachita Highlands and wildlife agencies. This Assessment October 16, 1996, a notice was Assessment, the Southern Forest addresses the sustainability of southern published in the Federal Register (Vol. Resource Assessment, and ongoing forests in light of increasing 61, No. 201) that identified the monitoring and evaluation results. urbanization and timber harvests, relationships between the Ozark- changing technologies (including chip C. Preliminary Issues Ouachita Highlands Assessment and mills), forest pests, climatic changes, Preliminary issues for the Ozark-St. Forest Plan revisions for the National and other factors that influence the Francis National Forests plan revision Forests in Arkansas, Missouri, and region’s forests. In late 2001, draft focus on parts of the current Forest Plan Oklahoma. In addition to reviewing the reports from the Southern Forest where change may be needed. The results of this broad-scale assessment Resource Assessment were made preliminary issues were derived from: and the draft conclusions of a more available to the public. Some of these the Ozark-Highlands Assessment, the recent assessment (described below), the findings will be incorporated into the Southern Forest Resource Assessment, Forests evaluated the ‘‘initial need for revised Forest Plan. internal comments from forest change’’ using the experience of managers, results of monitoring, the employees responsible for 4. Relationship of the Forest Plan mid-plan review, and a series of public implementing the Forest Plan as well as Revision for the Ozark-St. Francis meetings. The proposed actions in the results of the mid-plan review, National Forests to Revision Efforts for section D give a detailed description of monitoring, research, and public the Mark Twain and the Ouachita why the issues were developed. comments received from 1990 through National Forests early 2002. These evaluations are the Forest Plan revision will be 1. Mix of Developed Recreation basis for the preliminary issues and conducted simultaneously on these Opportunities proposed actions identified in this national forests. The Forests anticipate The Forest needs to determine the notice. Additional issues or topics will that a separate EIS and revised Forest type of development, settings, and be developed as needed to respond to Plan will be produced for each services to provide in the next 15 years. public comments received in response administrative unit. The respective to this NOI and subsequent scoping Forest Supervisors have agreed to 2. Public Access and Dispersed efforts. coordinate the revisions when feasible Recreation Opportunities 3. The Ozark-Ouachita Highlands and practical. The respective planning The Forest needs to determine the Assessment and the Southern Forest teams will work together to address combination of land allocation for Resource Assessment common issues. motorized and non-motorized trail and road access to minimize conflict among The U.S. Forest Service and many 5. The Role of Scoping in Revising the Land and Resource Management Plan users, provide recreation opportunities, other agencies participated in the and protect the resources. preparation of the Ozark-Ouachita This NOI includes a description of Highlands Assessment, which ‘‘Preliminary Issues’’ and ‘‘Proposed 3. Special Areas culminated in a final summary and four Actions’’ for the revision of the Forest The Forest needs to determine what technical reports that were made Plan of the Ozark-St. Francis National special areas are needed. Some available to the public in early 2000 Forests. The Proposed Actions concern examples are: wild and scenic rivers, (available at the Forest Plan web page one or more of the plan decisions special interest areas, wilderness, scenic address provided near the beginning of identified in the purpose and need. byways, research natural areas (RNAs), this document). This Assessment Scoping to receive public comments on and experimental forests. included national forest system lands the preliminary issues and proposed and private lands within the highlands actions will begin following the 4. Ecosystem Health and Sustainability of Arkansas, Missouri, and Oklahoma. publication of this NOI. Public The Forest needs to determine what The Assessment facilitated comments received during this period actions and land allocations are needed ecologically based approaches to public will be used to further define the to insure the health of ecosystems while land management in the Ozark-Ouachita preliminary issues that should be considering plant, animal, and human Highlands by collecting and analyzing addressed, the Forest Plan decisions interaction. broadscale biological, physical, social, that need to be analyzed (the ‘‘proposed 5. Relationship of NFMA to and economic data. The Assessment actions’’ and ‘‘need for change’’), and Communities and Economies supports the revision of the Forest Plan the range of alternatives that will be by describing how the lands, resources, developed. For more information on The issue is how to balance the people, and management of the national how the public can become involved economic and social needs of the public forests interrelate within the larger during the scoping period, see Section while managing for forest health and context of the Ozark-Ouachita F of this NOI. sustainability. Highlands area. This Assessment, however, is not a ‘‘decision document’’ B. Purpose and Need for Action D. Proposed Actions and it did not involve the National The purpose for revising the Forest The following proposed actions are Environmental Policy Act (NEPA) Plan comes from the requirements for being considered for revision in the process. land and resource management Forest Plan. Each was placed into one
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of two categories: (1) Actions wilderness. This land was identified in improve forest health and restore the appropriate for inclusion in the revision a set of inventoried roadless area maps oak ecosystem. because of laws or regulation. (2) contained in the Forest Service Roadless b. Silvicultural Practices: During plan Actions identified based on information Area Conservation, FEIS, Volume 2, development for the 1986 Forest Plan found in monitoring reports, insight dated November 2000. Forest Service and during the appeal to the Plan in from Forest Service employees interim direction 1920–2001–1, dated 1991, the public raised many questions regarding the effectiveness of the December 14, 2001, stated lands concerning the types of silvicultural current Plan, and public demand. remaining from the RARE II inventory systems being proposed. At that time, would be re-evaluated for roadless area there was little in the way of published 1. Actions Appropriate for Inclusion in research to support the effectiveness of the Forest Plan Revision characteristics during the Forest Plan revision process. The proposed action is silvicultural practices on the Ozark-St. The following topics will be included for the Forest to evaluate these lands as Francis National Forests. Since that in the Forest Plan revision because law well as any other lands that meet the time, much has been learned. and/or regulation require them to be criteria for inventoried roadless areas for Monitoring has provided valuable considered in all Forest Plan revisions: potential wilderness area consideration. insight for determining what does and a. Wild and Scenic Rivers does not work regarding reforestation c. Reevaluation of Lands Not Suited for practices. Research conducted through The Wild and Scenic Rivers Act of Timber the Southern Research Station and the 1968 was enacted to protect and NFMA and its implementing Ouachita/Ozark NFs has improved our preserve, in their free-flowing condition, regulations require identification of understanding of shade tolerance, certain selected rivers of the nation and lands suitable for timber management. species composition, and stand their immediate environments. The Act The revision process provides an dynamics. In addition, an increased established the National Wild and opportunity to reassess and better define emphasis on prescribed fire and the Scenic Rivers System, designated rivers lands suitable for timber management development of new herbicides with to be included in the system, and to account for changes in land better effectiveness require evaluation established policy for managing status and uses. The revision will also for inclusion in this plan revision. The designated rivers, and prescribed a use technology (such as GIS data) that proposed action is to revise and update process for designating additional rivers was not available during development silvicultural practices available to forest to the system. The Act, in Section of the original Forest Plan. The managers. 5(d)(1), requires consideration of c. Management Area Boundaries: The proposed action is to better define potential additions to the National current Forest Plan divided the Forest which lands are suited for timber System as part of the ongoing planning into eight management areas based on production and make appropriate process. similar management direction. The adjustments. The 1986 Forest Plan determined the proposed action is to re-evaluate the rivers identified by the Department of 2. Need for Change—Proposed Actions effectiveness of these designations. the Interior through the Nationwide d. Ecological Monitoring: Since the Rivers Inventory (1982) were eligible for The following proposed actions will 1986 Forest Plan, knowledge of further study. In April 1987, the Forest be included in the revision based on the ecological interactions has grown. completed Amendment 2 to the Forest following: information found in Strategies for monitoring and evaluating Plan, which classified each eligible river monitoring reports, insight from Forest effects of forest management on and established direction to protect Service employees and their experience ecosystems need to be re-evaluated in those rivers until a suitability study with the current Plan, new direction light of increased knowledge. Revisions could be completed. The Forest and policy, the results from the Ozark- of these strategies would include completed the sustainability study in Highlands Assessment, and a series of revising the list of Management 1991. The FEIS and Study Report public meetings. Indicator Species (MIS). The proposed evaluated 13 rivers, and recommended Ecosystem Sustainability action is to revise the monitoring six. On April 23, 1992, Congress requirements. amended the Wild and Scenic Rivers a. Oak Decline and Oak Mortality: e. Wildlife Management Practices: The Act, adding the six recommended rivers Oak Decline is occurring throughout the knowledge about managing wildlife into the Wild and Scenic Rivers System. oak component of the forest due to from an ecological perspective has The Forests will review other rivers to advanced age, low site index, and three increased since the 1986 Forest Plan. see if they may be eligible for further years of drought. These factors have led Restoration of certain ecosystems study. to an unprecedented insect epidemic of through timber management and red oak borer, which has caused prescribed fire could supplement or b. Wilderness Recommendation significant mortality on approximately replace the current food plot concept. Forest Service policy and regulations 300,000 acres. Forest age class distribution is heavily in 36 CFR 219.17, require that roadless At present the primary areas of weighted toward the older age classes, areas be evaluated and considered for mortality are located on the Pleasant which in turn has negatively affected recommendation as potential wilderness Hill, Bayou, and Boston Mountain wildlife species dependent upon early during the forest planning process. The Ranger Districts. Trees are being killed and mid-seral habitat. Loss of the red Ozark-St. Francis National Forests on all sites and in all age classes due to oak on much of the Forest will currently have five wilderness areas. the epidemic proportions of the insect negatively affect species dependent Management Area 1 of the 1986 Forest population. The Forest has upon mast. Silvicultural prescriptions Plan provides direction for these areas. approximately 700,000 acres of mature designed to balance age classes, re- These wildernesses were originally hardwood forest. Red oaks occur in established the red oak, and create early identified in the Roadless Area Review about 95% of the hardwood forest. The seral habitat need to be considered. The and Evaluation, known as RARE II. Forest Plan does not address oak decline proposed action is to develop wildlife There are approximately 73,000 acres or mortality. The proposed action is to management practices incorporating left from RARE II not designated as develop management plan direction to ecological concepts.
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f. Prescribed Burning: The 1986 Plan compatibility with other uses and where recreation opportunities, and protect the did not recognize fire dependent these uses should occur. resources. ecosystems. It is now recognized that Customer satisfaction needs to be a Special Areas fire played a significant role in the monitoring tool. Many areas are being development of the vegetation on the used beyond capacity and resource a. Special Interest Areas: The 1986 Ozark-St. Francis National Forests. damage is occurring. The Limits of Forest Plan designated Management Landscape scale burning is a common Acceptable Change (LAC) process could Area 7 as Special Interest Areas (SIAs). practice for many forests today. This be applied to scenic rivers, special These areas total approximately 23,000 technique is more efficient and areas, and heavily used dispersed areas. acres and have unique scenic, incorporates the concepts of ecosystem The proposed action is to provide new geological, botanical, or cultural values. management in sustaining forest health. direction that responds to demand, The proposed action is to identify In order to burn larger areas, some of the demographics, marketing strategy, and potential additional special interest standards in the Plan need to be recreational business management areas. reviewed. The proposed action is to principles. b. Scenic Byways: The Ozark-St. provide for landscape scale burning and Recreation Opportunity Spectrum Francis National Forests have six scenic to recognize fire as a management tool (ROS): ROS is used to classify varieties byways. Each of these has unique needed to sustain the forest. of outdoor recreational opportunities. characteristics, which need to be g. Riparian Areas: Areas next to lakes, The Forest Plan references ROS maintained. Corridor managements perennial, ephemeral, and intermittent acreages, but does not use it to describe objectives need to be defined. This may streams on the Ozark-St. Francis different settings or opportunities. ROS include such things as turnout lanes, National Forests are important for can be part of the description of the vistas, and vegetation management protecting water quality, fish, and other desired future condition (DFC). It can guidelines. There may be other aquatic resources. Riparian areas are also be used for allocating and highways that need consideration. The complex ecosystems that provide food, separating conflicting or competing proposed action is for the Plan to habitat, and movement corridors for uses. Establishing ROS will help with provide direction that will protect and both water and land animal travel management planning, which enhance the qualities of the scenic influences the opportunities for various communities. Streamside management byways and determine if other byways activities. The proposed action is to zones (SMZs) are needed to help should be nominated. minimize nonpoint source pollution to identify the ROS allocation for each area c. Other Special Areas: Other special surface waters, and manage these of the Forest. areas on the Forests include Research important areas. The Ozark-St. Francis Scenery Management: The 1974 Natural Areas (RNAs) and experimental National Forests’ current direction as Visual Quality Objective System (VQO) forests. The current Plan has two RNAs: outlined in Amendment 5 of the Forest used in the Forest Plan needs to be Turkey Ridge (373 acres) on the St. Plan is hard to implement for ephemeral replaced with the Scenery Management Francis National Forest and Dismal streams. The proposed action is to System (SMS). VQO used scenery to Hollow (2,077 acres) on the Ozark revise the Plan to incorporate riparian mitigate the effects of management area management direction and to actions. SMS recognizes scenery as a National Forest. The Ozark-St. Francis insure SMZ standards can be resource. SMS will establish overall National Forests also have two implemented. resource goals and objectives to monitor experimental forests, the 700-acre Henry h. Natural Processes: During the past the scenic resource. The proposed Koen Experimental Forest and the 15 years, the Forest has experienced a action is to implement SMS and 4,200-acre Sylamore Experimental number of catastrophic events such as recognize scenery as a resource. Forest. Both of these areas are fire, windstorms, floods, and insect Public Access and Dispersed administered by the Southern Research damage. It is recognized that although Recreation: A number of roads have Station (SRS). The need for additional they appear catastrophic, these events been obliterated or closed in the last RNAs and the continued need for are part of natural processes. The decade using earthen mounds, gates, experimental forests will be determined current Forest Plan does not provide and signs. The current Forest Plan off- by the revision in coordination with the any direction or guidance for addressing highway-vehicle (OHV) direction SRS. these events. The proposed action is to prohibits cross-country travel. In the Lands and Special Uses: The current provide management guidelines that past year, there has been a renewed Plan outlined a schedule of proposed work with natural processes and emphasis to enforce the current policy. land acquisitions and identified them recognize how catastrophic disturbances The closing of roads and emphasis on on a map. Experience over the last 15 can contribute to forest health and enforcing the OHV policy has received years has shown this to be too productivity. much attention. Closing areas to restrictive. Unanticipated acquisition Recreation Management: The Ozark- motorized use affects traditional access and disposal opportunities have St. Francis National Forests are that many perceive as reducing occurred over the last 15 years. The Plan managed to provide a variety of recreational opportunities. Others in the should provide broad direction on recreational opportunities within a wide public want areas to be managed as non- acquisition and disposal goals, range of settings. The demand for new motorized uses to increase opportunities objectives, and priorities. The process recreational opportunities including for solitude. Forest Service concerns needs to be streamlined to meet public OHV/motorcycle use rock climbing, include lack of budgets to maintain the expectations. Lack of funding for horseback riding, canoeing, kayaking, current road system, impacts to the soil landlines is leading to many unsolved and full-service campsites has increased and water resources, and impacts to trespass cases and makes ROW (right-of- dramatically in the past decade. Trends wildlife populations and habitat. The way) acquisition difficult. There are indicate traditional recreational proposed action is to determine the opportunities to consolidate corridors in opportunities, including hunting, combination of land allocation for special uses for electric lines and other fishing, hiking, and primitive camping motorized and non-motorized trail utilities. The proposed action is to are expected to continue in popularity. opportunities and road access to provide better direction for lands and Direction is needed to address trail minimize conflict among users, provide special uses.
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E. Preliminary Alternatives Date Location To assist the Forest Service in identifying and considering issues and The actual alternatives presented in June 20, 2002 ...... Springdale, AR. concerns on the proposed actions, the DEIS will portray a full range of comments on the DEIS should be as responses to the significant issues. The G. Planning Regulations specific as possible. It is also helpful if DEIS will examine the effects of comments refer to specific pages or implementing strategies to achieve The Department of Agriculture chapters of the draft statement. different desired future conditions and published new planning regulations on Comments may also address the will develop possible management November 9, 2000. A USDA Forest adequacy of the DEIS or the merits of objectives and opportunities that would Service review of this planning rule the alternatives formulated and move the forests toward those desired identified concerns with the ability to discussed in the statement. Reviewers conditions. A preferred alternative will implement several provisions of the may wish to refer to the Council on be identified in the DEIS. The range of 2000 rule. There are also lawsuits Environmental Quality Regulations for alternatives presented in the DEIS will challenging the 2000 rule that may implementing the procedural provisions include one that continues current affect its implementation. of the NEPA at 40 CFR 1503.3 in management direction and others that To address these problems, the Chief addressing these points. After the will address the range of issues of the Forest Service has started a comment period on the DEIS ends, the developed in the scoping process. process to develop a revision to the comments will be analyzed, considered, F. Involving the Public November 2000 planning rule. On May and responded to by the Forest Service 10, 2001, Secretary Veneman signed an in preparing the FEIS. The scheduled The objective in the public interim final rule allowing Forest Plan completion of the FEIS is by September involvement process is to create an amendments or revisions initiated 2005. The Responsible Official will atmosphere of openness where all before May 9, 2002, to proceed under consider the comments, responses, and members of the public feel free to share the new planning rule (November 2000) environmental consequences discussed information with the Forest Service on or under the 1982 planning regulations. in the FEIS together with all applicable a regular basis. All parts of this process The Ozark-St. Francis National Forests laws, regulations, and policies in will be structured to maintain this will proceed under the 1982 planning making a decision regarding revision. openness. The Forest Service is seeking regulations pending future direction in The Responsible Official will document information, comments, and assistance revised regulations. the decision and reasons for the from individuals, organization, tribal decision in a Record of Decision. This governments, and federal, state, and H. Release and Review of the EISs decision may be subject to appeal in local agencies that may be interested in The DEIS is expected to be filed with accordance with 36 CFR 217. or affected by the proposed action (36 the EPA and to be available for public CFR 219.6). Dated: April 25, 2002. comment by September 2004. At that R. Gray Pierson, Public participation will be solicited time, the EPA will publish a notice of by notifying (in person and/or by mail) availability of the DEIS in the Federal Acting Deputy Regional Forester. known interested and affected publics. Register. The comment period will be 3 [FR Doc. 02–10778 Filed 4–30–02; 8:45 am] News releases will be used to inform the months from the date the EPA publishes BILLING CODE 3410–11–M public of various steps of the revision the notice of availability in the Federal process and locations of public Register. involvement opportunities. Public DEPARTMENT OF COMMERCE participation opportunities include The Forest Service believes it is written comments, open houses, focus important to give reviewers notice of Submission For OMB Review; groups, and collaborative forums. several court rulings related to public Comment Request participation in the environmental Public participation will be sought review process. Reviewers of the DEIS throughout the revision process but will DOC has submitted to the Office of must structure their participation in the be particularly important at several Management and Budget (OMB) for environmental review of the proposal so points along the way. The first formal clearance the following proposal for that it is meaningful and alerts an opportunity to comment is during the collection of information under the agency to the reviewer’s position and scoping process (40 CFR 150.7). Scoping provisions of the Paperwork Reduction contentions. Vermont Yankee Nuclear includes: (1) Identifying additional Act (44 U.S.C. chapter 35). Power Corp. v. NRDC. 435 U.S. 519, 553 potential issues (other than those Agency: U.S. Census Bureau. (1978). Also, environmental objections previously described); (2) from these, Title: American Community Survey. that could be raised at the DEIS stage identifying significant issues, those Form Number(s): ACS–1(2003), ACS– but that are not raised until after which have been covered by prior 1(2003)PR(SP), ACS–1(GQ), ACS–3(GQ), completion of the FEIS may be waived environmental review or those which ACS–4(GQ), ACS–290. or dismissed by the courts. City of are non-significant for the plan revision; Agency Approval Number: 0607– Angoon v. Hodel, 803 F.2d 1016, 1022 (3) exploring additional alternatives; 0810. (9th Cir. 1986) and Wisconsin Heritages, and (4) identifying potential Type of Request: Revision of a Inc. v. Harris, 490 F. Supp. 1334, 1338 environmental effects of the proposed currently approved collection. (E.D. Wis. 1980). Because of these court action and alternatives (i.e., direct, Burden: 1,927,300 hours. rulings, it is very important that those indirect, and cumulative effects). Three Number of Respondents: 3,063,000. interested in this proposed action public meetings are scheduled during Avg Hours Per Response: 38 minutes. participate by the close of the 3-month the scoping process. Needs and Uses: The U.S. Census comment period so that substantive Bureau requests authorization from the Date Location comments and objections are made Office of Management and Budget available to the Federal Service at a time (OMB) to conduct the American June 13, 2002 ...... Russellville, AR. when it can meaningfully consider them Community Survey (ACS) starting in June 18, 2002 ...... Jasper, AR. and respond to them in the FEIS. November 2002. The Census Bureau has
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been developing a methodology to Census Bureau to investigate the effects Dated: April 26, 2002. collect and update every year on both the ACS and the census due to Madeleine Clayton, demographic, social, economic, and having the two activities going on in the Departmental Paperwork Clearance Officer, housing data that are essentially the same place at the same time. In 1999, Office of the Chief Information Officer. same as the ‘‘long-form’’ data that the the number of sites was increased to 31 [FR Doc. 02–10718 Filed 4–30–02; 8:45 am] Census Bureau traditionally has comparison sites. The purpose of the BILLING CODE 3510–07–P collected once a decade as part of the comparison sites was to give a good decennial census. Federal and state tract-by-tract comparison between the government agencies use such data to 1999–2002 ACS cumulated estimates DEPARTMENT OF COMMERCE evaluate and manage federal programs and the Census 2000 long-form and to distribute funding for various estimates and to use these comparisons Submission for OMB Review; programs which include food stamps, to identify both the causes of differences Comment Request transportation dollars, and housing and diagnostic variables that tend to DOC has submitted to the Office of grants. State, county, and community predict a certain kind of difference. Management and Budget (OMB) for governments, nonprofit organizations, In 2000–2002, the Census Bureau clearance the following proposal for businesses, and the general public use conducted the Census 2000 information like housing quality, Supplementary Survey, the 2001 collection of information under the income distribution, journey-to-work Supplementary Survey, and the 2002 provisions of the Paperwork Reduction patterns, immigration data, and regional Supplementary Survey using the ACS Act (44 U.S.C. chapter 35). Agency: Census Bureau. age distributions for decisionmaking methodology. Each of these surveys had Title: 2002 Economic Census Covering and program evaluation. a sample of approximately 700,000 the Mining Sector. Since the Census Bureau collects the residential addresses per year. These Form Number(s): MI–21101, MI– long-form data only once every ten surveys were conducted to study the 21102, MI–21201, MI–21202, MI–21203, years, the data become out of date over operational feasibility of collecting long- MI–21204, MI–21205, MI–21206, MI– the course of the decade. To provide form type data in a different 21207, MI–21208, MI–21209, MI–21210, more timely data, the Census Bureau methodology from the decennial census, MI–21211, MI–21301, MI–21302. developed an alternative called demonstrate the reliability and stability Agency Approval Number: None. Continuous Measurement (CM). CM is a of state and large area estimates over Type of Request: New collection. reengineering effort that blends the time, and demonstrate the usability of strength of small area estimation with Burden: 55,080 hours in FY 2003. multiyear estimates. Number of Respondents: 14,500. the high quality of current surveys. We Beginning in November 2002, the Avg Hours Per Response: 3 hours and realize that there is an increasing need Census Bureau will begin full 50 minutes. for data describing lower geographic implementation of the ACS by Needs and Uses: The 2002 Economic detail. Currently, the decennial census increasing the sample to a total of Census covering the Mining Sector will is the only source of data available for 250,000 residential addresses per month use a mail canvass, supplemented by small-area levels. In addition, there is an in the 50 states and the District of data from Federal administrative increase in interest in obtaining data for Columbia. For 2003–2005, the ACS will records, to measure the economic small subpopulations such as groups have an annual sample of approximately activity of approximately 25,000 mining within the Hispanic, Asian, and 3 million households. In addition, we establishments classified in the North American Indian populations, the will select approximately 3,000 American Industry Classification elderly, and children. CM will provide residential addresses per month in System (NAICS). The mining sector of current data throughout the decade for Puerto Rico and refer to the survey as the economic census distinguishes two small areas and small subpopulations. the Puerto Rico Community Survey. basic activities: mine operation and The ACS is the data collection vehicle Affected Public: Individuals or mining support activities. The economic for CM. After years of development and households. testing, the ACS is ready for full Frequency: The ACS is conducted census will produce basic statistics for implementation in FY 2003. The ACS monthly. Respondents are required to number of establishments, shipments, will provide more timely information report only once. payroll, employment, detailed supplies for critical economic planning by Respondent’s Obligation: Mandatory. and fuels consumed, depreciable assets, governments and the private sector. In Legal Authority: Title 13 U.S.C., inventories, and capital expenditures. It the current information-based economy, Sections 141, 193, and 221. also will yield a variety of subject federal, state, tribal, and local OMB Desk Officer: Susan Schechter, statistics, including shipments by decisionmakers, as well as private (202) 395–5103. product line, type of operation, size of business and nongovernmental Copies of the above information establishments and other industry- organizations, need current, reliable, collection proposal can be obtained by specific measures. and comparable socioeconomic data to calling or writing Madeleine Clayton, The mining sector is an integral part chart the future. Without the ACS, data Departmental Paperwork Clearance of the economic census which is the users will have to use data collected Officer, (202) 482–3129, Department of major source of data about the structure during Census 2000 for the next ten Commerce, room 6608, 14th and and functioning of the United States years. Constitution Avenue, NW., Washington, economy, and features unique industry The ACS demonstration period began DC 20230 (or via the Internet at and geographic detail. The economic in 1996 in four sites. In 1997, the survey [email protected]). census provides essential information was conducted in eight sites to evaluate Written comments and for government, industry, business, and costs, procedures, and new ways to use recommendations for the proposed the general public. The Federal the information. In 1998, the ACS information collection should be sent Government uses the information from expanded to include two counties in within 30 days of publication of this the economic census as an important South Carolina that overlapped with notice to Susan Schechter, OMB Desk part of the framework for the national counties in the Census 2000 Dress Officer, room 10201, New Executive accounts, input-output measures, key Rehearsal. This approach allowed the Office Building, Washington, DC 20503. economic indexes, and other estimates
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that serve as the factual basis for Form Number(s): SM–44(00)S, SM– produce comparable data between economic policymaking, planning, and 44(00)SE, SM–44(00)SS, SM–44(00)B, neighboring countries. administration. State governments rely SM–44(00)BE, SM–44(00)BS, SM– In 2000, we redesigned our current on the economic census for 44(00)L, SM–44(00)LE, SM–44(00)LS, retail forms to incorporate a new series comprehensive, geographical economic SM–45(00)S, SM–45(00)SE, SM– of form numbers, and to include the e- data in order to make decisions 45(00)SS, SM–45(00)B, SM–45(00)BE, commerce screening or data request as concerning policymaking, planning, and SM–45(00)BS, SM–72(00)S, SM–20(00)I, a separate item. The content of the administration. Finally, industry, SM–20(00)L-Replacing B–101(97)S, B– forms did not change; therefore there business, and the general public use 101(97)B, B–111(97)S, B–111(97)B, B– was no change in reporting burden. information from the economic census 111(97)L, B–113(97)I, B–113(97)L. Affected Public: Businesses or other Agency Approval Number: 0607– for economic forecasting, market for-profit. 0717. research, as benchmarks for their own Frequency: Monthly. sample-based surveys, and in making Type of Request: Revision of a business and financial decisions. currently approved collection. Respondent’s Obligation: Voluntary. Affected Public: Business or other for- Burden: 14,761 hours. Legal Authority: Title 13 U.S.C., profit. Number of Respondents: 9,417. Section 182. Frequency: One time. Avg Hours Per Response: 8 minutes. OMB Desk Officer: Susan Schechter, Needs and Uses: The Current Retail Respondent’s Obligation: Mandatory. (202) 395–5103. Sales and Inventory Survey provides Legal Authority: Title 13 U.S.C., Copies of the above information Sections 131 and 224. estimates of monthly retail sales, end-of- month merchandise inventories, and collection proposal can be obtained by OMB Desk Officer: Susan Schechter, calling or writing Madeleine Clayton, (202) 395–5103. quarterly e-commerce sales of retailers in the United States by selected kinds of Departmental Paperwork Clearance Copies of the above information Officer, (202)482–3129, Department of collection proposal can be obtained by business. Also, it provides monthly sales of food service establishments. The Commerce, room 6608, 14th and calling or writing Madeleine Clayton, Constitution Avenue, NW, Washington, Departmental Paperwork Clearance Bureau of Economic Analysis (BEA) uses this information to prepare the DC 20230 (or via the Internet at Officer, (202)482–3129, Department of [email protected]). Commerce, room 6608, 14th and National Income and Products Accounts Constitution Avenue, NW, Washington, and to benchmark the annual input- Written comments and DC 20230 (or via the Internet at output tables. Statistics provided from recommendations for the proposed [email protected]). the Current Retail Sales and Inventory information collection should be sent Written comments and Survey are used to calculate the gross within 30 days of publication of this recommendations for the proposed domestic product (GDP). notice to Susan Schechter, OMB Desk information collection should be sent Estimates produced from the Current Officer, room 10201, New Executive within 30 days of publication of this Retail Sales and Inventory Survey are Office Building, Washington, DC 20503. notice to Susan Schechter, OMB Desk based on a probability sample. The Dated: April 26, 2002. Officer, room 10201, New Executive sample design consists of one fixed Madeleine Clayton, panel where all cases are requested to Office Building, Washington, DC 20503. Departmental Paperwork Clearance Officer, report sales and/or inventories each Office of the Chief Information Officer. Dated: April 26, 2002. month. [FR Doc. 02–10720 Filed 4–30–02; 8:45 am] Madeleine Clayton, As of April 2001 (June data month), Departmental Paperwork Clearance Officer, we started publishing retail sales and BILLING CODE 3510–07–P Office of the Chief Information Officer. inventory estimates on the North [FR Doc. 02–10719 Filed 4–30–02; 8:45 am] American Industry Classification DEPARTMENT OF COMMERCE BILLING CODE 3510–07–P System (NAICS). Prior to that period, estimates were published on the Economic Development Administration Standard Industrial Classification (SIC) DEPARTMENT OF COMMERCE basis. As a result of NAICS, we will Notice of Petitions by Producing Firms continue to collect monthly sales on for Determination of Eligibility To Submission for OMB Review; food services and publish a retail trade Apply for Trade Adjustment Comment Request and food services total in addition to a Assistance DOC has submitted to the Office of retail trade total. NAICS provides a Management and Budget (OMB) for better way to classify individual AGENCY: Economic Development clearance the following proposal for businesses, and is widely adopted Administration (EDA). collection of information under the throughout both the public and private ACTION: To give all interested parties an provisions of the Paperwork Reduction sectors. NAICS is more relevant as it opportunity to comment. Act (44 U.S.C. chapter 35). identifies more industries that Agency: Census Bureau. contribute to today’s growing economy. Petitions have been accepted for filing Title: Current Retail Sales and NAICS was developed by the United on the dates indicated from the firms Inventory Survey. States, Canada, and Mexico in order to listed below.
LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD MARCH 20, 2002—APRIL 18, 2002
Date Firm name Address petition Product accepted
RST & B Quilting and Bedding, Inc ...... 325 Greer Road, Florence, SC 29506 ..... 04/01/02 Bedding items, comforters, pillow shams and ruffles.
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LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD MARCH 20, 2002—APRIL 18, 2002— Continued
Date Firm name Address petition Product accepted
Bulk Lift International, Inc ...... 1013 Tamarac Drive, Carpentersville, IL 04/01/02 Flexible intermediate bulk bags of textile 60110. materials. Acutek, Inc ...... 777 Action Avenue, Odessa, MO 64076 .. 04/01/02 Sealed beam lamps and plastic warning lamp reflectors used in recreational, automotive and commercial applica- tions. Advantage Control, Inc ...... 4700 Haroll Abitz Drive, Muskogee, OK 04/02/02 Controllers and pumps used for industrial 74403. water treatment. Heartfelt Connections, Inc...... 2415 7th Avenue West, Seattle, WA 04/02/02 Gift items—pillows, sachets, scarves, 98119. pins, blankets, bibs, etc. General Die Finishing, Inc...... 1504A Quarry Drive, Edgewood, MD 04/18/02 Metal finishing and conversion coating for 21040. the aerospace industry. Pace Precision Products, Inc ...... Ohio Avenue, DeBois, PA 15801 ...... 04/02/02 Metal stampings and dies use in the automotive industry. Herkules Equipment Corporation ...... 2760 Ridgeway Court, Walled Lake, MI 04/02/02 Paint gun washers, pneumatic lifts, 48390. crushers, infra-red systems, air jacks, dust retention systems, and their parts. Koester Metals, Inc ...... 1441 Quality Drive, Defiance, OH 43512 04/02/02 Fabricated steel enclosures for the hous- ing of control devices. Biovance Technologies, Inc ...... 14050 N. 78th Street, Omaha, NE 68122 04/03/02 Cattle feed. Procedyne Corp ...... 11 Industrial Drive, New Brunswick, NJ 04/09/02 Fluid bed furnaces. 08901. Precision Machine and Manufacturing Co 500 Industrial Road, Grove, OK 74344 .... 04/18/02 Aircraft fuselage components, including ribs, tracks, beams, supports and bulk- heads. Mel-Co-Ed, Inc...... 381 Roosevelt Avenue, Pawtucket, RI 04/18/02 Jewelry findings. 02860. J. C., Ltd ...... 40 John Williams Street, Attleboro, MA 04/18/02 Jewelry findings. 02703.
The petitions were submitted Dated: April 22, 2002. covering this same antidumping duty pursuant to Section 251 of the Trade Act Anthony J. Meyer, order. of 1974 (19 U.S.C. 2341). Consequently, Coordinator, Trade Adjustment and FOR FURTHER INFORMATION CONTACT: the United States Department of Technical Assistance. James P. Maeder or Martha V. Douthit, Commerce has initiated separate [FR Doc. 02–10679 Filed 4–30–02; 8:45 am] Office of Policy, Import Administration, investigations to determine whether BILLING CODE 3510–24–P International Trade Administration, increased imports into the United States U.S. Department of Commerce, at (202) of articles like or directly competitive 482–3330 or (202) 482–5050, with those produced by each firm DEPARTMENT OF COMMERCE respectively, or Mary Messer, Office of contributed importantly to total or Investigations, U.S. International Trade International Trade Administration partial separation of the firm’s workers, Commission, at (202) 205–3193. or threat thereof, and to a decrease in Notice of Initiation of Five-Year sales or production of each petitioning SUPPLEMENTARY INFORMATION: (‘‘Sunset’’) Review of Antidumping firm. Duty Order on Engineered Process The Applicable Statute Any party having a substantial Gas Turbo-Compressor Systems, Unless otherwise indicated, all interest in the proceedings may request Whether Assembled, and Whether citations to the Tariff Act of 1930, as a public hearing on the matter. A Complete or Incomplete, From Japan amended (the ‘‘Act’’), are references to request for a hearing must be received the provisions effective January 1, 1995, by Trade Adjustment Assistance, Room AGENCY: Import Administration, the effective date of the amendments 7315, Economic Development International Trade Administration, made to the Act by the Uruguay Round Administration, U.S. Department of Department of Commerce. Agreements Act (‘‘URAA’’). In addition, Commerce, Washington, DC 20230, no SUMMARY: In accordance with section unless otherwise indicated, all citations later than the close of business of the 751(c) of the Tariff Act of 1930, as to the Department regulations are to 19 tenth calendar day following the amended (‘‘the Act’’), the Department of CFR part 351 (2001). Pursuant to publication of this notice. Commerce (‘‘the Department’’) is sections 751(c) and 752 of the Act, an The Catalog of Federal Domestic automatically initiating a five-year antidumping (‘‘AD’’) or countervailing Assistance official program number and (‘‘sunset’’) review of the antidumping duty (‘‘CVD’’) order will be revoked, or title of the program under which these duty order listed below. The the suspended investigation will be petitions are submitted is 11.313, Trade International Trade Commission (‘‘the terminated, unless revocation or Adjustment Assistance. Commission’’) is publishing termination would be likely to lead to concurrently with this notice its notice continuation or recurrence of (1) of Institution of Five-Year Review dumping or a countervailable subsidy,
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and (2) material injury to the domestic Department’s Policy Bulletin 98:3— Background industry. Policies Regarding the Conduct of Five- Initiation of Review The Department’s procedures for the year (‘‘Sunset’’) Reviews of conduct of sunset reviews are set forth Antidumping and Countervailing Duty In accordance with 19 CFR 351.218, in 19 CFR 351.218. Guidance on Orders; Policy Bulletin, 63 FR 18871 we are initiating a sunset review of the methodological or analytical issues (April 16, 1998) (‘‘Sunset Policy following antidumping duty order: relevant to the Department’s conduct of Bulletin’’). sunset reviews is set forth in the
DOC ITC Country Product Case No. Case No.
A–588–840 ...... 731–TA– Japan ...... Gas Turbo-Compressor Systems 748
Filing Information date of publication in the Federal Dated: April 25, 2002. As a courtesy, we are making Register of the notice of initiation by Faryar Shirzad, information related to sunset filing a notice of intent to participate. Assistant Secretary for Import proceedings, including copies of the The required contents of the notice of Administration. Sunset Regulations (19 CFR 351.218) intent to participate are set forth at 19 [FR Doc. 02–10767 Filed 4–30–02; 8:45 am] and Sunset Policy Bulletin, the CFR 351.218(d)(1)(ii). In accordance BILLING CODE 3510–DS–P Department’s schedule of sunset with the Department’s regulations, if we reviews, case history information (i.e., do not receive a notice of intent to previous margins, duty absorption participate from at least one domestic DEPARTMENT OF COMMERCE determinations, scope language, import interested party by the 15-day deadline, International Trade Administration volumes), and service lists, available to the Department will automatically the public on the Department’s sunset revoke the order without further review. Internet website at the following [A–570–855] If we receive an order-specific notice address: ‘‘http://ia.ita.doc.gov/sunset/’’. All submissions in this sunset review of intent to participate from a domestic Certain Non-frozen Apple Juice must be filed in accordance with the interested party, the Department’s Concentrate from the People’s Department’s regulations regarding regulations provide that all parties Republic of China: Notice of Extension format, translation, service, and wishing to participate in the sunset of Time Limit for the Preliminary certification of documents. These rules review must file substantive responses Results of the First Administrative can be found at 19 CFR 351.303. Also, not later than 30 days after the date of Review we suggest that parties check the publication in the Federal Register of Department’s sunset website for any the notice of initiation. The required AGENCY: Import Administration, updates to the service list before filing contents of a substantive response, on International Trade Administration, any submissions. The Department will an order-specific basis, are set forth at Department of Commerce. make additions to and/or deletions from 19 CFR 351.218(d)(3). Note that certain ACTION: Notice of Extension of Time the service list provided on the sunset information requirements differ for Limit. website based on notifications from foreign and domestic parties. Also, note parties and participation in this review. that the Department’s information SUMMARY: The Department of Commerce Specifically, the Department will delete requirements are distinct from the is extending the time limit for the from the service list all parties that do International Trade Commission’s preliminary results of the first not submit a substantive response to the information requirements. Please administrative review of the notice of initiation. consult the Department’s regulations for antidumping duty order on certain non- Because deadlines in a sunset review information regarding the Department’s frozen apple juice concentrate from the are, in many instances, very short, we conduct of sunset reviews.1 Please People’s Republic of China. The period urge interested parties to apply for consult the Department’s regulations at of review is November 23, 1999 through access to proprietary information under 19 CFR part 351 for definitions of terms May 31, 2001. This extension is made administrative protective order (‘‘APO’’) pursuant to section 751(a)(3)(A) of the immediately following publication in and for other general information concerning antidumping and Tariff Act of 1930, as amended by the the Federal Register of the notice of Uruguay Rounds Agreement Act. initiation of the sunset review. The countervailing duty proceedings at the Department’s regulations on submission Department. EFFECTIVE DATE: May 1, 2002. of proprietary information and This notice of initiation is being FOR FURTHER INFORMATION CONTACT: eligibility to receive access to business published in accordance with section Jarrod Goldfeder or Andrew McAllister, proprietary information under APO can 751(c) of the Act and 19 CFR 351.218(c). Office of AD/CVD Enforcement I, Import be found at 19 CFR 351.304–306. Administration, International Trade Information Required From Interested 1 A number of parties commented that these Administration, U.S. Department of Parties interim-final regulations provided insufficient time Commerce, 14th Street and Constitution for rebuttals to substantive responses to a notice of Avenue, NW, Washington, DC 20230; Domestic interested parties (defined initiation, 19 CFR 351.218(d)(4)). As provided in 19 telephone numbers: (202) 482–0189 or in 19 CFR 351.102) wishing to CFR 351.302(b), the Department will consider (202) 482–1174, respectively. participate in this sunset review must individual requests for extension of that five-day respond not later than 15 days after the deadline based upon a showing of good cause. SUPPLEMENTARY INFORMATION:
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Applicable Statutes and Regulations results in this case by an additional 60 Administration, International Trade Unless otherwise indicated, all days, (i.e., until not later than July 1, Administration, U.S. Department of citations to the statute are references to 2002). Commerce, 14th Street and Constitution provisions effective January 1, 1995, the This notice is published pursuant to Avenue, NW, Washington, DC, 20230; effective date of the amendments made sections 751(a)(1) and 777(i)(1) of the telephone (202) 482–0656 or (202) 482– to the Tariff Act of 1930, (the Act) by the Act. 3874, respectively. Uruguay Round Agreements Act, and all April 25, 2002 Applicable Statue and Regulations citations to the Department of Richard W. Moreland, Unless otherwise indicated, all Commerce’s (the Department’s) Deputy Assistant Secretaryfor AD/CVD citations to the Tariff Act of 1930, as regulations are to 19 CFR Part 351 Enforcement. amended (the Act), are references to the (2001). [FR Doc. 02–10766 Filed 4–30–02; 8:45 am] provisions effective January 1, 1995, the Statutory Time Limits BILLING CODE 3510–DS–S effective date of the amendments made Section 751(a)(3)(A) of the Act to the Act by the Uruguay Round Agreements Act. In addition, unless requires the Department to issue the DEPARTMENT OF COMMERCE preliminary results of an administrative otherwise indicated, all citations to the review within 245 days after the last day International Trade Administration Department of Commerce’s (the of the anniversary month of an order for Department’s) regulations are to 19 CFR which a review is requested and a final [A–489–807] Part 351 (2001). determination within 120 days after the Certain Steel Concrete Reinforcing Background date on which the preliminary results Bars From Turkey; Preliminary Results On April 2, 2001, the Department are published. However, if it is not of Antidumping Duty Administrative published in the Federal Register a practicable to complete the review Review notice of ‘‘Opportunity to Request an within the time period, section Administrative Review’’ of the 751(a)(3)(A) of the Act allows the AGENCY: Import Administration, antidumping duty order on certain steel Department to extend these deadlines to International Trade Administration, concrete reinforcing bars (rebar) from a maximum of 365 days and 180 days, Department of Commerce. Turkey (66 FR 17523). respectively. SUMMARY: In response to a request by the In accordance with 19 CFR Background petitioner and two producers/exporters 351.213(b)(2), in April 2001, the of the subject merchandise, the On July 23, 2001, the Department Department received requests from Department of Commerce is conducting HABAS Sinai ve Tibbi Gazlar Istihsal published the notice of initiation of the an administrative review of the antidumping administrative review on Endustrisi A.S. (Habas) and ICDAS antidumping duty order on certain steel Celik Enerji Tersane ve Ulasim Sanayi, certain non-frozen apple juice concrete reinforcing bars from Turkey. concentrate from the People’s Republic A.S. (ICDAS) to conduct an This review covers three manufacturers/ administrative review of the of China (PRC) covering the period from exporters of the subject merchandise to November 23, 1999 through May 31, antidumping duty order on rebar from the United States. This is the fourth Turkey. In accordance with 19 CFR 2001. (See Initiation of Antidumping period of review, covering April 1, 2000, and Countervailing Duty Administrative 351.213(b)(1), on April 30, 2001, the through March 31, 2001. Department also received a request for Reviews and Requests for Revocation in We have preliminarily determined Part, 66 FR 38252 (July 23, 2001)). On an administrative review from the that sales have been made below the petitioner, AmeriSteel, for the following February 1, 2002, the Department normal value by certain of the postponed the preliminary results of four producers/exporters of rebar: companies subject to this review. In Colakoglu Metalurji A.S. (Colakoglu); this review by 60 days. (See Certain addition, we have preliminarily Non-frozen Apple Juice Concentrate Diler Demir Celik Endustrisi ve Ticaret determined to rescind the review with A.S., Yazici Demir Celik Sanayi ve from the People’s Republic of China: respect to Diler Demir Celik Endustrisi Notice of Extension of Time Limit for Ticaret A.S., and Diler Dis Ticaret A.S. ve Ticaret A.S., Yazici Demir Celik the Preliminary Results of the First (collectively ‘‘Diler’’); Ekinciler Holding, Sanayi ve Ticaret A.S., and Diler Dis Administrative Review, 67 FR 5788 A.S. and Ekinciler Demir Celik A.S. Ticaret A.S., and ICDAS Celik Enerji (February 7, 2002)). Accordingly, the (collectively ‘‘Ekinciler’’); and ICDAS. Tersane ve Ulasim Sanayi, A.S. because preliminary results are currently due In May 2001, the Department initiated these companies had no shipments of not later than May 1, 2002. an administrative review for Colakoglu, subject merchandise during the period Diler, Ekinciler, Habas, and ICDAS (66 Extension of Time Limits for of review. If these preliminary results FR 28421 (May 17, 2001)) and issued Preliminary Results are adopted in the final results of this questionnaires to them. Due to the number of companies and review, we will instruct the Customs In May 2001, Diler informed the the complexity of the issues, including Service to assess antidumping duties on Department that it had no shipments of the collection of surrogate value all appropriate entries. subject merchandise to the United information, it is not practicable to issue We invite interested parties to States during the period of review the preliminary results within the comment on these preliminary results. (POR). We reviewed Customs Service originally anticipated time limit (i.e., Parties who wish to submit comments data to confirm that Diler had no May 1, 2002). (See Memorandum from in this proceeding are requested to shipments of subject merchandise Team to Richard W. Moreland, submit with each argument: (1) A during the POR. Consequently, in ‘‘Extension of Time Limit for statement of the issue; and (2) a brief accordance with 19 CFR 351.213(d)(3) Preliminary Results,’’ dated, April 26, summary of the argument. and consistent with our practice, we are 2002. Therefore, in accordance with EFFECTIVE DATE: May 1, 2002. preliminarily rescinding our review for section 751(a)(3)(A) of the Act, the FOR FURTHER INFORMATION CONTACT: Irina Diler. For further discussion, see the Department is extending the time limit Itkin or Elizabeth Eastwood, Office of ‘‘Partial Rescission of Review’’ section for the completion of preliminary AD/CVD Enforcement, Office 2, Import of this notice, below.
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In August and September, 2001, we description of the scope of this difference affects price comparability, as received responses to sections A proceeding is dispositive. manifested in a pattern of consistent through C of the questionnaire (i.e., the price differences between the sales on Period of Review sections regarding sales to the home which NV is based and comparison- market and the United States) and a The POR is April 1, 2000, through market sales at the level of trade of the response to Section D of the March 31, 2001. export transaction, we make a level-of- questionnaire (i.e., the section regarding Partial Rescission of Review trade adjustment under section cost of production (COP) and 773(a)(7)(A) of the Act. constructed value (CV)) from Colakoglu, As noted above, Diler informed the Colakoglu claimed that it made home Ekinciler, Habas, and ICDAS. Department that it had no shipments of market sales at more than one level of Regarding ICDAS, in its Section A subject merchandise to the United trade, while the remaining respondents response, this company informed the States during the POR. We have claimed that they made home market Department that it had a single sale of confirmed this with the Customs sales at only one level of trade. We subject merchandise that entered the Service. Additionally, as noted above, analyzed the information on the record United States after the POR. ICDAS did not have entries of subject for each company and found that each Accordingly, ICDAS requested that the merchandise during the POR and respondent, including Colakoglu, Department extend the POR to capture requested that the Department extend performed essentially the same this sale. We have determined that it is the POR to capture one sale of subject marketing functions in selling to all of not appropriate to expand the POR to merchandise that entered the United its home market and U.S. customers, capture this one sale and we are States after the POR. However, we have regardless of customer category (e.g., rescinding the review with respect to determined that it is not appropriate to end user, distributor). Therefore, we ICDAS because it did not have entries expand the POR to capture this sale. For determine that these sales are at the of subject merchandise during the POR. further discussion, see the same level of trade. We further For further discussion, see the ‘‘Partial memorandum entitled ‘‘Status of determine that no level-of-trade Rescission of Review’’ section of this Review for ICDAS Celik Enerji Tersane adjustment is warranted for any of the notice, below. ve Ulasim Sanayi A.S. in the 2000–2001 respondents. For a detailed explanation In September 2001, we issued a Antidumping Duty Administrative of this analysis, see the memorandum supplemental questionnaire regarding Review on Certain Steel Concrete entitled ‘‘Concurrence Memorandum for sections A through C to Habas. We Reinforcing Bars from Turkey,’’ dated the Preliminary Results of the 2000– received a response to this August 28, 2001. Therefore, in 2001 Antidumping Duty Administrative questionnaire in October 2001. accordance with 19 CFR 351.213(d)(3) Review on Certain Steel Concrete In November and December 2001, we and consistent with the Department’s Reinforcing Bars from Turkey,’’ dated issued supplemental questionnaires practice, we are preliminarily April 25, 2002 (the ‘‘concurrence regarding sections A through C to rescinding our review with respect to memo’’). Colakoglu and sections A through D to Diler and ICDAS. (See e.g., Certain Comparisons to Normal Value Ekinciler. Welded Carbon Steel Pipe and Tube On November 29, 2001, the from Turkey; Final Results and Partial To determine whether sales of rebar Department postponed the preliminary Rescission of Antidumping from Turkey were made in the United results of this review until no later than Administrative Review, 63 FR 35190, States at less than normal value, we April 30, 2002. See Certain Steel 35191 (June 29, 1998); and Certain Fresh compared the EP to the NV. Because Concrete Reinforcing Bars From Turkey; Cut Flowers from Colombia; Final Turkey’s economy experienced Notice of Extension of Time Limit for Results and Partial Rescission of significant inflation during the POR, as Preliminary Results in Antidumping Antidumping Duty Administrative is Department practice, we limited our Duty Administrative Review, 66 FR Review, 62 FR 53287 (Oct. 14, 1997).) comparisons to home market sales made 63218 (Dec. 5, 2001). during the same month in which the In January and February 2002, we Level of Trade U.S. sale occurred and did not apply our issued section D supplemental In accordance with section ‘‘90/60’’ contemporaneity rule (see, e.g., questionnaires to Colakoglu and Habas. 773(a)(1)(B) of the Act, to the extent Certain Porcelain on Steel Cookware We received responses to these practicable, we determine normal value from Mexico: Final Results of questionnaires in February and March (NV) based on sales in the comparison Antidumping Duty Administrative 2002. market at the same level of trade as Review, 62 FR 42496, 42503 (Aug. 7, export price (EP). The NV level of trade 1997)). This methodology minimizes the Scope of the Review is that of the starting-price sales in the extent to which calculated dumping The product covered by this review is comparison market or, when NV is margins are overstated or understated all stock deformed steel concrete based on CV, that of the sales from due solely to price inflation that reinforcing bars sold in straight lengths which we derive selling, general and occurred in the intervening time period and coils. This includes all hot-rolled administrative expenses (SG&A) and between the U.S. and home market deformed rebar rolled from billet steel, profit. For EP, the U.S. level of trade is sales. rail steel, axle steel, or low-alloy steel. also the level of the starting-price sale, In all previous segments of this It excludes (i) plain round rebar, (ii) which is usually from the exporter to proceeding, we compared products sold rebar that a processor has further the unaffiliated U.S. customer. in the United States to products sold in worked or fabricated, and (iii) all coated To determine whether NV sales are at the home market in the ordinary course rebar. Deformed rebar is currently a different level of trade than EP sales, of trade that were identical with respect classifiable in the Harmonized Tariff we examine stages in the marketing to the following characteristics: grade, Schedule of the United States (HTSUS) process and selling functions along the size, ASTM specification, and form. In under item numbers 7213.10.000 and chain of distribution between the this segment, however, we have 7214.20.000. The HTSUS subheadings producer and the unaffiliated customer. reconsidered this hierarchy and are now are provided for convenience and If the comparison-market sales are at a treating form as the most important customs purposes. The written different level of trade and the physical characteristic, based on
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comments received by one of the Normal Value completed segment of this proceeding in respondents in this review. Where there In order to determine whether there is which these companies participated were no home market sales of a sufficient volume of sales in the home (i.e., the less-than-fair-value (LTFV) merchandise that was identical in these market to serve as a viable basis for investigation for Habas and Colakoglu respects to the merchandise sold in the calculating NV (i.e., the aggregate and the 1996–1998 administrative United States, we compared U.S. volume of home market sales of the review for Ekinciler). As a result, the products with the most similar foreign like product is five percent or Department initiated an investigation to merchandise sold in the home market more of the aggregate volume of U.S. determine whether these companies had based on the characteristics listed sales), we compared the volume of each made home market sales during the POR above, in that order of priority. For respondent’s home market sales of the at prices below their COP. See Notice of Final Determination of Sales at Less further discussion, see the concurrence foreign like product to the volume of Than Fair Value: Certain Steel Concrete memo. In making the above change, we U.S. sales of subject merchandise, in Reinforcing Bars from Turkey, 62 FR considered comments filed by all accordance with section 773(a)(1)(C) of 9737, 9740 (Mar. 4, 1997). See also interested parties. We invite interested the Act. Based on this comparison, we Certain Steel Concrete Reinforcing Bars parties to comment on our revision of determined that each respondent had a From Turkey; Final Results of the matching hierarchy in their case viable home market during the POR. Antidumping Duty Administrative briefs. Consequently, we based NV on home Review and New Shipper Review, 64 FR market sales. Export Price 49150 (Sept. 10, 1999). For each respondent, in accordance We calculated the COP based on the For all U.S. sales we used EP, in with our practice, we excluded home sum of each respondent’s cost of accordance with section 772(a) of the market sales of non-prime merchandise materials and fabrication for the foreign Act, because the subject merchandise made during the POR from our like product, plus amounts for general was sold directly to the first unaffiliated preliminary analysis based on the and administrative and financing purchaser in the United States prior to limited quantity of such sales in the expenses, in accordance with section importation and constructed export home market and the fact that no such 773(b)(3) of the Act, except as follows. price methodology was not otherwise sales were made to the United States For Habas, we increased the reported warranted based on the facts of record. during the POR. (See, e.g., Final materials costs for all products to Determinations of Sales at Less Than A. Colakoglu account for yield loss related to certain Fair Value: Certain Hot-Rolled Carbon billet production because the reported We based EP on packed prices to the Steel Flat Products, Certain Cold-Rolled costs did not include an amount for this first unaffiliated purchaser in the United Carbon Steel Flat Products, Certain loss. We based the amount of the States. We made deductions for ocean Corrosion-Resistant Carbon Steel Flat adjustment on non-adverse facts freight expenses, marine insurance Products, and Certain Cut-to-Length available. As facts available, we used expenses, inspection fees, lashing and Carbon Steel Plate from Korea, 58 FR the yield loss percentage reported by loading expenses, demurrage expenses, 37176, 37180 (July 9, 1993).) For further Habas in its supplemental questionnaire and exporter association fees (offset by discussion, see the concurrence memo. response. For further discussion, see the freight commission revenue, wharfage Colakoglu and Ekinciler made sales of memorandum entitled ‘‘Calculations revenue, despatch revenue, demurrage rebar to affiliated parties in the home Performed for Habas Sinai ve Tibbi commission revenue, agency fee market during the POR. Consequently, Gazlar Istihsal Endustrisi A.S. for the revenue, attendance fee revenue, and we tested these sales to ensure that they Preliminary Results in the 2000–2001 other freight-related revenue), where were made at ‘‘arm’s-length’’ prices, in Antidumping Duty Administrative appropriate, in accordance with section accordance with 19 CFR 351.403(c). To Review on Steel Concrete Reinforcing 772(c)(2)(A) of the Act. conduct this test, we compared the unit Bars from Turkey,’’ dated April 25, prices of sales to affiliated and 2002. We have requested further B. Ekinciler unaffiliated customers net of all information regarding the company’s movement charges, direct selling actual yield loss, and we will consider We based EP on packed prices to the expenses, and packing. Where prices to first unaffiliated purchaser in the United this information for purposes of the the affiliated party were on average 99.5 final results. States. We made deductions for percent or more of the price to the As noted above, we determined that inspection expenses, exporter unaffiliated parties, we determined that the Turkish economy experienced association fees, surveying expenses, these sales were made at arm’s length significant inflation during the POR. dunnage expenses, brokerage and (see Antidumping Duties; Therefore, in order to avoid the handling expenses, marine insurance, Countervailing Duties; Final Rule, 62 FR distortive effect of inflation on our international freight expenses, and 27295, 27355 (May 19, 1997) comparison of costs and prices, we customs clearance fees, where (‘‘Preamble’’)). In accordance with the requested that each respondent submit appropriate, in accordance with section Department’s practice, we only included the product-specific cost of 772(c)(2)(A) of the Act. in our margin analysis those sales to the manufacturing (COM) incurred during C. Habas affiliated party that were made at arm’s each month of the reporting period. We length. calculated a period-average COM for We based EP on packed prices to the Pursuant to section 773(b)(2)(A)(ii) of each product after indexing the reported first unaffiliated purchaser in the United the Act, for Colakoglu, Ekinciler, and monthly costs during the reporting States. We made deductions for foreign Habas there were reasonable grounds to period to an equivalent currency level inland freight expenses, exporter believe or suspect that these using the Turkish Wholesale Price Index association fees, surveying expenses, respondents had made home market from the International Financial brokerage and handling expenses, and sales at prices below their COPs in this Statistics published by the International international freight expenses, where review because the Department had Monetary Fund. We then restated the appropriate, in accordance with section disregarded sales that failed the cost test period-average COMs in the currency 772(c)(2)(A) of the Act. for these companies in the most recently values of each respective month.
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We compared the weighted-average accordance with section 773(a)(6)(B) of 19 CFR 351.410(c), we made COP figures to home market prices of the Act. circumstance-of-sale adjustments for the foreign like product, as required Pursuant to section 773(a)(6)(C)(iii) of credit expenses and exporter association under section 773(b) of the Act, in order the Act and 19 CFR 351.410(c), we made fees. to determine whether these sales had circumstance-of-sale adjustments for We deducted home market packing been made at prices below the COP. On credit expenses (offset by interest costs and added U.S. packing costs, in a product-specific basis, we compared revenue), bank charges, and exporter accordance with section 773(a)(6) of the the COP to home market prices, less any association fees. Act. applicable movement charge, selling We deducted home market packing Where appropriate, we made expenses, and packing expenses. costs and added U.S. packing costs, in adjustments to NV to account for In determining whether to disregard accordance with section 773(a)(6) of the differences in physical characteristics of home market sales made at prices below Act. the merchandise, in accordance with the COP, we examined whether such Where appropriate, we made section 773(a)(6)(C)(ii) of the Act and 19 sales were made: 1) In substantial adjustments to NV to account for CFR 351.411. We based this adjustment quantities within an extended period of differences in physical characteristics of on the difference in the variable costs of time; and 2) at prices which permitted the merchandise, in accordance with manufacturing for the foreign like the recovery of all costs within a section 773(a)(6)(C)(ii) of the Act and 19 product and subject merchandise, using reasonable period of time in the normal CFR 351.411. We based this adjustment POR-average costs as adjusted for course of trade. See sections on the difference in the variable costs of inflation for each month of the POR, as 773(b)(2)(B), (C), and (D) of the Act. manufacturing for the foreign like described above. Pursuant to section 773(b)(2)(C)(i) of product and subject merchandise, using the Act, where less than 20 percent of POR-average costs as adjusted for Currency Conversion a respondent’s sales of a given product inflation for each month of the POR, as The Department’s preferred source for were at prices less than the COP, we did described above. daily exchange rates is the Federal not disregard any below-cost sales of Reserve Bank. However, the Federal that product because we determined B. Ekinciler Reserve Bank does not track or publish that the below-cost sales were not made We based NV on ex-factory, ex- exchange rates for Turkish Lira. in ‘‘substantial quantities.’’ Where 20 warehouse or delivered prices to home percent or more of a respondent’s sales market customers, adjusted for billing Therefore, we made currency of a given product were at prices below errors. We excluded from our analysis conversions based on the daily the COP, we found that sales of that home market re-sales by Ekinciler of exchange rates from the Dow Jones model were made in ‘‘substantial merchandise produced by unaffiliated News/Retrieval Service. quantities’’ within an extended period companies. Where appropriate, we Preliminary Results of the Review of time (as defined in section made deductions from the starting price We preliminarily determine that the 773(b)(2)(B) of the Act), in accordance for foreign inland freight (offset by following margins exist for the with section 773(b)(2)(C)(i) of the Act. In freight revenue) and warehousing respondents during the period April 1, such cases, we also determined that expenses, in accordance with section 2000, through March 31, 2001: such sales were not made at prices 773(a)(6)(B) of the Act. which would permit recovery of all Pursuant to section 773(a)(6)(C)(iii) of Margin per- costs within a reasonable period of time, the Act and 19 CFR 351.410(c), we made Manufacturer/producer/exporter centage in accordance with section 773(b)(2)(D) circumstance-of-sale adjustments for of the Act. Therefore, for purposes of bank charges and exporter association Colakoglu Metalurji A.S ...... 6.74 this administrative review, we fees. Where applicable, in accordance Ekinciler Holding A.S./Ekinciler disregarded these below-cost sales and with 19 CFR 351.410(e), we offset any Demir Celik A.S ...... 0.00 used the remaining sales as the basis for commission paid on a U.S. sale by Habas Sinai ve Tibbi Gazlar determining NV, in accordance with reducing the NV by home market Istihsal Endustrisi A.S ...... 0.27 section 773(b)(1) of the Act. Where all indirect selling expenses, up to the sales of a specific product were at prices amount of the U.S. commission. The Department will disclose to below the COP, we disregarded all sales We deducted home market packing parties the calculations performed in of that product. costs and added U.S. packing costs, in connection with these preliminary results within five days of the date of A. Colakoglu accordance with section 773(a)(6) of the Act. publication of this notice. Interested We based NV on ex-factory or Where appropriate, we made parties may request a hearing within 30 delivered prices to home market adjustments to NV to account for days of publication. Any hearing, if customers. For those home market sales differences in physical characteristics of requested, will be held two days after which were negotiated in U.S. dollars, the merchandise, in accordance with the date rebuttal briefs are filed. we used the U.S.-dollar price, rather section 773(a)(6)(C)(ii) of the Act and 19 Pursuant to 19 CFR 351.309, interested than the Turkish lira (TL) price adjusted CFR 351.411. We based this adjustment parties may submit cases briefs not later for kur farki (i.e., an adjustment to the on the difference in the variable costs of than 30 days after the date of TL invoice price to account for the manufacturing for the foreign like publication of this notice. Rebuttal difference between the estimated and product and subject merchandise, using briefs, limited to issues raised in the actual TL value on the date of payment), period-average costs as adjusted for case briefs, may be filed not later than because the only price agreed upon was inflation for each month of the reporting 37 days after the date of publication of a U.S.-dollar price, and this price period, as described above. this notice. The Department will issue remained unchanged; the buyer merely the final results of the administrative paid the TL-equivalent amount at the C. Habas review, including the results of its time of payment. Where appropriate, we We based NV on the starting prices to analysis of issues raised in any such made deductions from the starting price home market customers. Pursuant to written comments, within 120 days of for foreign inland freight expenses, in section 773(a)(6)(C)(iii) of the Act and publication of these preliminary results.
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Upon completion of the antidumping duties prior to liquidation EXTENSION OF TIME LIMITS FOR administrative review, the Department of the relevant entries during this PRELIMINARY RESULTS shall determine, and the Customs review period. Failure to comply with Section 751(a)(3)(A) of the Tariff Act Service shall assess, antidumping duties this requirement could result in the of 1930, as amended (the Act) states that on all appropriate entries. Pursuant to Secretary’s presumption that if it is not practicable to complete the 19 CFR 351.212(b)(1), for Habas, we reimbursement of antidumping duties review within the time specified, the have calculated importer-specific occurred and the subsequent assessment administering authority may extend the assessment rates based on the ratio of of double antidumping duties. 245–day period to issue its preliminary the total amount of antidumping duties We are issuing and publishing these results by up to 120 days. Completion calculated for the examined sales to the results of review in accordance with of the preliminary results of this review total entered value of those sales. sections 751(a)(1) and 777(i)(1) of the within the 245–day period is not Regarding Colakoglu and Ekinciler, for Act. assessment purposes, we do not have practicable because the review involves the information to calculate entered Dated: April 25, 2002. complex affiliation issues, including value because these companies are not Faryar Shirzad, respondent INI Steel Company’s (‘‘INI’’) the importers of record for the subject Assistant Secretary, Import Administration. merger with Kangwon and additional merchandise. Accordingly, we have [FR Doc. 02–10769 Filed 4–30–02; 8:45 am] issues regarding INI’s corporate affiliations. calculated importer-specific assessment BILLING CODE 3510–DS–P rates for the merchandise in question by Therefore, in accordance with section aggregating the dumping margins 751(a)(3)(A) of the Act, we are extending calculated for all U.S. sales to each DEPARTMENT OF COMMERCE the time period for issuing the importer and dividing this amount by preliminary results of review by 120 the total quantity of those sales. The International Trade Administration days until August 31, 2002. However, assessment rate will be assessed due to a Federal holiday, the signature uniformly on all entries of that [A–580–841] date will be Tuesday, September 3, particular importer made during the 2002. The final results continue to be POR. Pursuant to 19 CFR 351.106(c)(2), Structural Steel Beams from Korea: due 120 days after the publication of the we will instruct the Customs Service to Extension of Time Limits for preliminary results. liquidate without regard to antidumping Preliminary Results of Antidumping Dated: April 25, 2002. duties any of Habas’s entries for which Duty Administrative Review Joseph A. Spetrini, the assessment rate is de minimis (i.e., Deputy Assistant Secretary for Import AGENCY: Import Administration, less than 0.50 percent). The Department Administration, Group III. International Trade Administration, will issue appraisement instructions [FR Doc. 02–10770 Filed 4–30–02; 8:45 am] directly to the Customs Service. Department of Commerce. BILLING CODE 3510–DS–S Further, the following deposit ACTION: Notice of Extension of Time requirements will be effective for all Limits for the Preliminary Results of shipments of rebar from Turkey entered, Antidumping Duty Administrative DEPARTMENT OF COMMERCE or withdrawn from warehouse, for Review. consumption on or after the publication International Trade Administration date of the final results of this SUMMARY: The Department of Commerce administrative review, as provided for (‘‘the Department’’) is extending the Overseas Trade Missions by section 751(a)(2)(C) of the Act: (1) time limit for the preliminary results of AGENCY: International Trade The cash deposit rates for the reviewed the antidumping duty administrative companies will be the rates established Administration, Department of review of structural steel beams (‘‘SSB’’) Commerce. in the final results of this review; (2) for from Korea. previously investigated companies not ACTION: Notice. listed above, the cash deposit rate will DATES: May 1, 2002. SUMMARY: The Department of Commerce continue to be the company-specific rate FOR FURTHER INFORMATION CONTACT: invites U.S. companies to participate in published for the most recent period; (3) Brandon Farlander, AD/CVD the below listed overseas trade if the exporter is not a firm covered in Enforcement Group III, Office 9, Import missions. For a more complete this review, or the LTFV investigation, Administration, International Trade description of each trade mission, but the manufacturer is, the cash Administration, U.S. Department of obtain a copy of the mission statement deposit rate will be the rate established Commerce, 14th Street and Constitution from the Project Officer indicated for for the most recent period for the Avenue, N.W., Washington, D.C. 20230; each mission below. Recruitment and manufacturer of the merchandise; and telephone: (202) 482–0182. (4) the cash deposit rate for all other selection of private sector participants manufacturers or exporters will SUPPLEMENTARY INFORMATION: for these missions will be conducted continue to be 16.06 percent, the all BACKGROUND: according to the Statement of Policy others rate established in the LTFV Governing Department of Commerce investigation. On October 1, 2001, we published a Overseas Trade Missions, dated March These deposit requirements, when notice of initiation of a review of SSB 3, 1997. from Korea covering the period imposed, shall remain in effect until Franchising Matchmaker Trade February 11, 2000 through July 31, publication of the final results of the Delegation next administrative review. 2001. See Initiation of Antidumping and This notice serves as a preliminary Countervailing Duty Administrative Kuala Lumpur, Malaysia; Jakarta, reminder to importers of their Reviews and Requests for Revocation in Indonesia; Bangkok, Thailand; and responsibility under 19 CFR Part, October 1, 2001 (66 FR 49924). The Singapore. 351.402(f)(2) to file a certificate Department’s preliminary results are September 9–20, 2002. regarding the reimbursement of currently due on May 3, 2002. Recruitment closes on July 19, 2002.
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For further information contact: Mr. Dated: April 25, 2002. prepare a supplemental environmental Sam Dhir, U.S. Department of Thomas H. Nisbet, impact statement (SEIS) for the EFH Commerce. Director, Export Promotion Coordination, fishery management plan amendments. Telephone 202–482–4756, or e-mail: Office of Planning, Coordination and The function of the EFH Committee is [email protected]. Management. to serve as a steering committee in facilitating input to NMFS on the SEIS Environmental Technologies [FR Doc. 02–10665 Filed 4–30–02; 8:45 am] for EFH. The EFH Committee will Matchmaker Trade Delegation BILLING CODE 3510–DR–P provide input to NMFS and the Council Prague, Czech Republic; Bratislava, from industry, the conservation Slovakia; and Vienna, Austria. DEPARTMENT OF COMMERCE community, and general public as September 23–27, 2002. appropriate. The EFH Committee also Recruitment closes on July 22, 2002. National Oceanic and Atmospheric will submit periodic updates to the For further information contact: Ms. Administration Council on the SEIS for EFH. Further Yvonne Jackson, U.S. Department of [I.D. 042602E] information on the EFH Committee can Commerce. be found on the NPFMC website at: Telephone 202–482–2675, or e-mail: Magnuson Stevens Act Provisions; http://www.fakr.noaa.gov/npfmc/ [email protected]. Essential Fish Habitat; Public Meeting Committees/EFH/efh.htm. Agenda items for the May 2002 EFH Corporate Executive Office Mission at AGENCY: National Marine Fisheries Committee meeting include: finalizing ExpoPharm 02 Service (NMFS), National Oceanic and fishery descriptions; review and Berlin, Germany. Atmospheric Administration (NOAA), discussion of revised EFH and HAPC October 10–13, 2002. Commerce. alternatives; discussion of gear impacts For further information contact: Ms. ACTION: Notification of public meeting. on habitat; discussion of potential mitigation tools for each fishery; Anette Salama, U.S. Department of SUMMARY: The NPFMC will hold an Commerce, U.S. Consulate General, discussion of HAPC criteria and essential fish habitat (EFH) Steering possible nomination of HAPC sites and Dusseldorf, Germany. Committee (EFH Committee) meeting Telephone 011–49–211–737–767–60, types or a development of a nomination May 15–17, 2002. The EFH Committee or e-mail: [email protected]. and evaluation process for HAPC sites will discuss the following: fishery and types; research needs; adaptive Aerospace Business Development descriptions, EFH alternatives, habitat management; effects of rationalization; Mission to South Africa areas of particular concern (HAPC) and key terms in the EFH final rule will Johannesburg and Durban. alternatives, specific HAPC sites and be discussed including the terms’’ ‘‘to October 14–18, 2002. HAPC types. HAPC criteria, mitigation the extent practicable’’ and ‘‘minimal Recruitment closes on September 9, tools, research needs and adaptive and temporary.’’ The EFH Committee 2002. management, and key terms in the EFH will develop recommendations for the For further information contact: Ms. final rule including: ‘‘to the extent June NPFMC meeting on some or all of Karen Dubin, U.S. Department of practicable’’ and ‘‘minimal and the agenda items listed above. The EFH Commerce. temporary.’’ Committee also will discuss plans for Telephone 202–482–6236, or e-mail: DATES: The EFH Committee meeting future tasks and meetings. [email protected]. will be held on Wednesday, May 15, For further information about the EFH 2002, from 1 to 5:30 p.m.; on Thursday, SEIS, see the Notice of Intent to prepare Laboratory, Analytical and Scientific May 16, 2002, from 8:30 a.m. to 5:30 an SEIS published to the Proposed Instruments Matchmaker Trade p.m.; on Friday, May 17, 2002, from Rules section of the Federal Register (66 Delegation 8:30 a.m. to 4 p.m. FR 30396, June 6, 2001). For further Brussels, Belgium and Utrecht, The ADDRESSES: The EFH Committee information on the preliminary Netherlands. meeting will be in Sitka, Alaska at the alternative approaches for the November 4–8, 2002. Northern Southeast Regional designation of EFH and habitat areas of Recruitment closes on September 20, Aquaculture Association (NSRAA), particular concern (HAPC) see 67 FR 2002. 1308 Sawmill Creek Road. For 1325, January 10, 2002. For further information contact: Mr. directions call NSRAA at 907–747– Although other issues not contained Bill Kutson, U.S. Department of 6850. in this agenda may come before the EFH Commerce. Committee for discussion, those issues Telephone 202–482–2839, or e-mail: FOR FURTHER INFORMATION CONTACT: will not be the subject of formal action [email protected]. Cindy Hartmann, NMFS, Habitat during this meeting. Formal action will Conservation Division, 709 West 9th, be restricted to those issues specifically Corporate Executive Office Mission at Suite 801, P.O. Box 21668, Juneau, identified in this notice and any issues Medica Alaska, 99802–1668, 907–586–7585 e- arising after publication of the notice Dusseldorf, Germany. mail: [email protected]; or that require emergency action under November 20–23, 2002. Cathy Coon, NPFMC, 605 West 4th section 305(c) of the Magnuson-Stevens For further information contact: Mr. Avenue, Suite 306, Anchorage, Alaska, Fishery Conservation and Management George Martinez, U.S. Department of 99501–2252, 907–271–2809, e-mail: Act, provided the public has been Commerce. [email protected]. notified of the Committee’s intent to Telephone 727–893–3738, or e-mail: SUPPLEMENTARY INFORMATION: take final action to address the [email protected]. emergency. For further information contact Mr. Background Thomas Nisbet, U.S. Department of The EFH Committee was formally Special Accommodations Commerce. established by the Chair of the NPFMC This meeting is physically accessible Telephone 202–482–5657, or e-mail in May 2001. The EFH Committee was to people with disabilities. Requests for [email protected]. established in response to the need to sign language interpretation or other
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auxiliary aids should be directed to for hunting tree stands to address the Federal law, or substantially interfere Cindy Hartmann, 907–586–7235, at least risk of falling, and ban waist belt with any agency’s ability to perform its 5 working days prior to the meeting restraints used with the tree stands. The statutory obligations. The Leader, date. Commission is docketing this request as Regulatory Information Management Authority: 16 U.S.C. 1801 et seq. a petition under the Consumer Product Group, Office of the Chief Information Safety Act. 15 U.S.C. §§ 2056 and 2058. Officer, publishes that notice containing Dated: April 26, 2002. The petitioner states that incident proposed information collection Matteo Milazzo, reports and medical literature show that requests prior to submission of these Acting Director, Office of Sustainable serious injuries and death are associated requests to OMB. Each proposed Fisheries, National Marine Fisheries Service. with hunting tree stands and waist belt information collection, grouped by [FR Doc. 02–10774 Filed 4–30–02; 8:45 am] restraints. She states that ‘‘regulation is office, contains the following: (1) Type BILLING CODE 3510–22–S needed to ensure that stands are of review requested, e.g. new, revision, designed with optimal materials and extension, existing or reinstatement; (2) instructions in order to reduce the Title; (3) Summary of the collection; (4) CONSUMER PRODUCT SAFETY likelihood of a fall.’’ She also states that, Description of the need for, and COMMISSION although waist belts are intended to proposed use of, the information; (5) prevent injury, they have been involved Respondents and frequency of Petition Requesting Standard for in four fatalities where hunters were collection; and (6) Reporting and/or Hunting Tree Stands and Ban of Waist asphyxiated by them. Recordkeeping burden. OMB invites Belt Restraints Used With Hunting Tree Interested parties may obtain a copy public comment. The Department of Stands of the petition by writing or calling the Education is especially interested in Office of the Secretary, Consumer public comment addressing the AGENCY: Consumer Product Safety Product Safety Commission, Commission. following issues: (1) is this collection Washington, DC 20207; telephone (301) necessary to the proper functions of the ACTION: Notice. 504–0800. Copies of the petition are also Department; (2) will this information be available for inspection from 8:30 a.m. SUMMARY: The Commission has received processed and used in a timely manner; to 5 p.m., Monday through Friday, in a petition (CP 02–3) requesting that the (3) is the estimate of burden accurate; the Commission’s Public Reading Room, Commission issue a consumer product (4) how might the Department enhance Room 419, 4330 East-West Highway, safety standard for hunting tree stands the quality, utility, and clarity of the Bethesda, Maryland, or from the library/ and ban waist belt restraints used with information to be collected; and (5) how electronic reading room section of the the stands. The Commission solicits might the Department minimize the Commission’s website at www.cpsc.gov. written comments concerning the burden of this collection on the petition. Dated: April 25, 2002. respondents, including through the use Todd A. Stevenson, of information technology. DATES: The Office of the Secretary must receive comments on the petition by Secretary, Consumer Product Safety Dated: April 25, 2002. Commission. July 1, 2002. John Tressler, [FR Doc. 02–10784 Filed 4–30–02; 8:45 am] ADDRESSES: Comments, preferably in Leader, Regulatory Information Management, BILLING CODE 6355–01–P five copies, on the petition should be Office of the Chief Information Officer. mailed to the Office of the Secretary, Office of Special Education and Consumer Product Safety Commission, DEPARTMENT OF EDUCATION Rehabilitative Services Washington, DC 20207, telephone (301) Type of Review: Extension. 504–0800, or delivered to the Office of Notice of Proposed Information Title: Protection and Advocacy of the Secretary, Room 501, 4330 East- Collection Requests Individual Rights (PAIR) Program West Highway, Bethesda, Maryland AGENCY: Department of Education. Assurances. 20814. Comments may also be filed by Frequency: Annually. SUMMARY: The Leader, Regulatory telefacsimile to (301) 504–0127 or by Affected Public: Not-for-profit Information Management Group, Office email to [email protected]. Comments institutions. should be captioned ‘‘Petition CP 02–3, of the Chief Information Officer, invites Reporting and Recordkeeping Hour Petition on Hunting Tree Stands.’’ A comments on the proposed information Burden: Responses: 57. Burden Hours: copy of the petition is available for collection requests as required by the 9. inspection at the Commission’s Public Paperwork Reduction Act of 1995. Abstract: Section 509 of the Reading Room, Room 419, 4330 East- DATES: Interested persons are invited to Rehabilitation Act of 1973 as amended West Highway, Bethesda, Maryland, or submit comments on or before July 1, (Act), and its implementing Federal from the library/electronic reading room 2002. Regulations at 34 CFR part 381, require section of the Commission’s website at SUPPLEMENTARY INFORMATION: Section the PAIR grantees to submit an www.cpsc.gov. 3506 of the Paperwork Reduction Act of application to the Rehabilitation FOR FURTHER INFORMATION CONTACT: 1995 (44 U.S.C. Chapter 35) requires Services Administration (RSA) Rockelle Hammond, Office of the that the Office of Management and Commissioner in order to receive Secretary, Consumer Product Safety Budget (OMB) provide interested assistance under Section 509 of the Act. Commission, Washington, DC 20207; Federal agencies and the public an early The Act requires that the application telephone (301) 504–0800, ext. 1232. opportunity to comment on information contain Assurances to which the grantee SUPPLEMENTARY INFORMATION: The collection requests. OMB may amend or must comply. Section 509(f) of the Act Commission has received waive the requirement for public specifies the Assurances. There are 57 correspondence from Carol Pollack- consultation to the extent that public PAIR grantees. All 57 grantees are Nelson, Ph.D., requesting that the participation in the approval process required to be part of the protection and Commission issue regulations that would defeat the purpose of the advocacy system in each State would establish a mandatory standard information collection, violate State or established under the Developmental
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Disabilities Assistance and Bill of Rights DEPARTMENT OF EDUCATION Individuals with disabilities may Act of 2000 (42 USC 6041 et seq.) obtain this document in an alternative Information Quality Guidelines Requests for copies of the proposed format (e.g., Braille, large print, information collection request may be AGENCY: Office of the Chief Information audiotape, or computer diskette) on accessed from http://edicsweb.ed.gov, Officer, Department of Education. request to the contact person listed by selecting the ‘‘Browse Pending ACTION: Notice of availability. under For a Copy of the Guidelines and Collections’’ link and by clicking on Further Information. SUMMARY: link number 2026. When you access the Section 515 of the Treasury and General Government SUPPLEMENTARY INFORMATION: information collection, click on Appropriations Act for Fiscal Year 2001 ‘‘Download Attachments’’ to view. Invitation to Comment (Public Law 106–554) requires all Written requests for information should Federal agencies covered by the We invite you to submit comments be addressed to Vivian Reese, Paperwork Reduction Act (44 U.S.C. regarding the guidelines. During and Department of Education, 400 Maryland Chapter 35), including the Department after the comment period, you may view Avenue, SW, Room 4050, Regional of Education, to issue guidelines by all public comments about these Office Building 3, Washington, D.C. October 1, 2002, for the purpose of guidelines at the following site: 20202–4651 or to the e-mail address ‘‘ensuring and maximizing the quality, _ www.ed.gov/offices/ocio/section515/ vivian [email protected]. Requests may also objectivity, utility, and integrity of index.html. be electronically mailed to the internet information (including statistical address [email protected] or faxed to information) disseminated by the Assistance to Individuals With 202–708–9346. Please specify the agency.’’ (Public Law 106–554). The Disabilities in Reviewing the complete title of the information agency guidelines must be consistent Rulemaking Record collection when making your request. with government-wide guidelines published by the Office of Management On request, we will supply an Comments regarding burden and/or and Budget (66 FR 49718, September 28, appropriate aid, such as a reader or the collection activity requirements 2001; 67 FR 8452, February 22, 2002) print magnifier, to an individual with a should be directed to Sheila Carey at and must include ‘‘administrative disability who needs assistance to (202) 708–6287 or via her internet mechanisms allowing affected persons review the comments or other address [email protected]. to seek and obtain correction of documents in the public record for these Individuals who use a information’’ that the agency maintains guidelines. If you want to schedule an telecommunications device for the deaf and disseminates, and that does not appointment for this type of aid, please (TDD) may call the Federal Information comply with the OMB or agency contact the person listed under For a Relay Service (FIRS) at 1–800–877– guidelines. Copy of the Guidelines and Further 8339. This Notice of Availability informs Information. [FR Doc. 02–10750 Filed 4–30–02; 8:45 am] the public that the Department of Electronic Access to This Document BILLING CODE 4000–01–P Education has written draft guidelines, which are available for public You may view this document, as well information and comment as described as all other Department of Education in this notice. DEPARTMENT OF EDUCATION documents published in the Federal DATES: We must receive your comments Register, in text or Adobe Portable Notice of Proposed Information on or before May 31, 2002. Document Format (PDF) on the Internet Collection Requests; Correction ADDRESSES: Address all comments about at the following site: www.ed.gov/ the guidelines to the Office of the Chief legislation/FedRegister. AGENCY: Department of Education. Information Officer, U.S. Department of Education, 7th and D Streets, SW., room To use PDF you must have Adobe ACTION: Correction notice. 4082, Washington, DC 20202–4580. If Acrobat Reader, which is available free you prefer to send your comments at this site. If you have questions about SUMMARY: On April 25, 2002, a notice through the Internet, use the following using PDF, call the U.S. Government inviting comment from the public, was address: [email protected]. Printing Office (GPO), toll free, at 1– published for ‘‘Community Technology You must include the term ‘‘Section 888–293–6498; or in the Washington, Centers Program Grant Notice Inviting 515 Information Quality Guidelines’’ in D.C., area at (202) 512–1530. Project Applications for One-Year the subject line of your electronic Note: The official version of this document Awards for Fiscal Year (FY) 2002’’ in message. is the document published in the Federal the Federal Register (67 FR 20498). This FOR FURTHER INFORMATION CONTACT: For Register. Free Internet access to the official notice was published erroneously and a Copy of the Guidelines and Further edition of the Federal Register and the Code should be disregarded. The Leader, Information: The guidelines are of Federal Regulations is available on GPO Regulatory Information Management, available through the Internet at the Access at: http://www.access.gpo.gov/nara/ Office of the Chief Information Officer, following site: www.ed.gov/offices/ocio/ index.html. hereby issues a correction notice as section515/index.html. required by the Paperwork Reduction Alternatively, you may contact Arthur Dated: April 26, 2002. Act of 1995. Graham, U.S. Department of Education, Craig B. Luigart, Dated: April 26, 2002. 7th and D Streets, SW., room 4060A, Chief Information Officer. Washington, DC 20202–4651. [FR Doc. 02–10771 Filed 4–30–02; 8:45 am] John D. Tressler, Telephone: (202) 260–0710. BILLING CODE 4001–01–P Leader, Regulatory Information Management If you use a telecommunications Group, Office of the Chief Information Officer. device for the deaf (TDD), you may call [FR Doc. 02–10751 Filed 4–30–02; 8:45 am] the Federal Information Relay Service BILLING CODE 4000–01–P (FIRS) at 1–800–877–8339.
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DEPARTMENT OF EDUCATION including titles, headings, quotations, Dated: April 26, 2002. references, and captions. Sally L. Stroup, [CFDA No. 84.336A] • Use a font that is either 12-point or Assistant Secretary, Office of Postsecondary Teacher Quality Enhancement Grants larger or no smaller than 10 pitch Education. Program—State Grants; Notice Inviting (characters per inch). [FR Doc. 02–10710 Filed 4–30–02; 8:45 am] • For tables, charts, or graphs also use Applications for New Awards for Fiscal BILLING CODE 4000–01–P a font that is either 12-point or larger or Year (FY) 2002 no smaller than 10 pitch. Purpose of Program: The program Our reviewers will not read any of the DEPARTMENT OF EDUCATION provides grants to States to promote specified sections of your application improvements in the quality of new that— Office of Postsecondary Education • Exceed the page limit if you apply teachers with the ultimate goal of [CFDA No. 84.031T] increasing student achievement in the these standards; or • Exceed the equivalent of the page nation’s pre-K–12 classrooms. For FY American Indian Tribally Controlled 2002, a new competition will be limit if you apply other standards. Applicable Regulations: (a) The Colleges and Universities (TCCU) conducted under the State Grants Education Department General Program; Notice Inviting Applications program (State program). The purpose of Administrative Regulations (EDGAR) in for New Awards for Fiscal Year (FY) the State Grants Program is to improve 34 CFR parts 75, 77, 79, 80, 82, 85, 86, 2002 the quality of a State’s teaching force by 97, 98 and 99. (b) The regulations for supporting the implementation of Purpose of Program: The TCCU this program in 34 CFR part 611. comprehensive statewide reform Program is authorized under title III, activities in areas such as teacher FOR APPLICATIONS AND FURTHER part A, section 316 of the Higher licensing and certification, INFORMATION CONTACT: Brenda Shade, Education Act of 1965, as amended accountability for high-quality teacher Teacher Quality Program, Office of (HEA). The program provides grants to preparation, and recruitment. Postsecondary Education, U.S. eligible institutions of higher education Eligible Applicants: State Grants Department of Education, 1990 K Street to enable them to improve their (including the District of Columbia, NW, Room 6152, Washington, DC academic quality, institutional Puerto Rico and the insular areas)— 20006–8525. Telephone: (202) 502– management, and fiscal stability, and States that did not receive an FY 1999 7878, FAX: (202) 502–7699 or via increase their self-sufficiency. grant or FY 2000 initial year under the Internet: [email protected]. If you Eligible Applicants: To qualify as an State Grants program. use a telecommunications device for the eligible institution under the program, a Applications Available: May 1, 2002. deaf (TDD), you may call the Federal tribal college or university must meet Deadline for Transmittal of Information Relay Service (FIRS) at 1– the definition of the term ‘‘tribally Applications: July 1, 2002. 800–877–8339. controlled college or university’’ in Deadline for Intergovernmental Individuals with disabilities may section 2 of the Tribally Controlled Review: August 29, 2002. obtain this document in an alternative College or University Assistance Act of Available Funds: $33.8 million. format (e.g., Braille, large print, 1978, or it must be listed in the Equity Estimated Range of Awards: Up to audiotape, or computer diskette) on in Educational Land Grant Status Act of $5,000,000. request to the program contact person 1994. In addition, it must be an Estimated Average Size of Awards: listed under FOR APPLICATIONS AND accredited or preaccredited institution FURTHER INFORMATION CONTACT. $3.4 million per year. and must, among other requirements, Estimated Number of Awards: 10–26. However, the Department is not able to have a high enrollment of needy reproduce in an alternative format the students, and its Educational and Note: The Department is not bound by any standard forms included in the estimates in this notice. General (E&G) expenditures per full- application process. Project Period: Up to 36 months. time equivalent (FTE) undergraduate Page Limit: The application narrative Electronic Access to This Document student must be low in comparison with is where you, the applicant, address the the average E&G expenditures per FTE You may view this document, as well undergraduate student of institutions selection criteria reviewers use to as all other Department of Education evaluate your application. that offer similar instruction. The documents published in the Federal complete eligibility requirements are If you are submitting an application Register, in text or Adobe Portable for a State grant, you must limit your found in 34 CFR 607.2–607.5. The Document Format (PDF) on the Internet regulations may also be accessed by narrative to the equivalent of no more at the following site: www.ed.gov/ than 50 pages and your accompanying visiting the following Department of legislation/FedRegister. Education web site: http://www.ed.gov/ work plan to the equivalent of no more To use the PDF you must have the legislation/FedRegister. than 10 pages. Submit the work plan as Adobe Acrobat Reader, which is Applications Available: May 1, 2002. an appendix. In addition, you must available free at this site. If you have Deadline for Transmittal of limit your budget narrative to the questions about using the PDF, call the Applications: June 10, 2002. equivalent of no more than 10 pages and U.S. Government Printing Office (GPO), Estimated Available Funds: $17.5 your evaluation plan to the equivalent toll free, at 1–888–293–6498; or in the million. of no more than 5 pages. Washington, DC area at (202) 512–1530. For the application narrative, work Note: The official version of this document SUPPLEMENTARY INFORMATION: plan, budget narrative, and evaluation is the document published in the Federal Approximately $400,000 of the $17.5 plan, the following standards apply: Register. Free Internet access to the official million appropriated for the TCCU • A ‘‘page’’ is 8.5″ x 11″, on one side edition of the Federal Register and the Code Program will be available for one new only, with 1″ margins at the top, bottom, of Federal Regulations is available on GPO individual or cooperative arrangement and both sides. Access at: http://www.access.gpo.gov/nara/ development grant, and approximately index.html. • Double space (no more than three $7.1 million will be available for new lines per vertical inch) all text, Program Authority: 20 U.S.C. 1021 et seq. construction. The remaining funds will
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be used to fund continuing awards. • A ‘‘page’’ is 8.5″ x 11″, on one side and amended on April 26, 2001. This Development grant monies may be used only, with 1″ margins top, bottom, and Executive order provides that recipients for a variety of allowable activities. both sides. of Federal construction funds may not Construction funds may be used solely • Double space (no more than three ‘‘require or prohibit bidders, offerors, for construction, maintenance, lines per vertical inch) all text in the contractors, or subcontractors to enter renovation and improvement in application narrative, including titles into or adhere to agreements with one classrooms, libraries, laboratories, and and headings. However, you may single or more labor organizations, on the same other instructional facilities, including space footnotes, quotations, references, or other related construction project(s)’’ purchase or rental of captions, charts, forms, tables, figures or ‘‘otherwise discriminate against telecommunications technology and graphs. bidders, offerors, contractors, or equipment or services. We will refer to • Use a font that is either 12-point or subcontractors for becoming or refusing grants to carry out construction as larger or no smaller than 10 pitch to become or remain signatories or construction grants. (characters per inch). otherwise to adhere to agreements with A TCCU that does not have a current The page limit does not apply to the one or more labor organizations, on the development grant under either the application cover sheet (ED 424) or the same or other construction project(s).’’ TCCU Program or the Strengthening assurances and certifications. However, However, the Executive order does not Institutions Program may apply for both the page limitation applies to all other prohibit contractors or subcontractors a TCCU Program development grant and parts of the application. from voluntarily entering into these We will reject your application if— a TCCU Program construction grant. A agreements. • You apply these standards and TCCU that currently has a development Projects funded under this program exceed the page limit; or grant awarded under the TCCU Program • that include construction activity will You apply other standards and be provided a copy of this Executive may apply for a TCCU Program exceed the equivalent of the page limit. construction grant. However, a TCCU Order and will be asked to certify that that has a current grant under the Special Funding Considerations they will adhere to it. Strengthening Institutions Program may 1. An applicant that does not have a Instructions for Transmittal of not receive a TCCU Program development or construction grant will Applications construction or development grant in have a priority over those applicants FY 2002. A TCCU seeking both a TCCU that have one or both grants. Note: Some of the procedures in these Program development grant and 2. In tie-breaking situations described instructions for transmitting applications differ from those in the EDGAR (34 CFR construction grant must submit a in 34 CFR 607.23, we will award one separate application for each type of 75.102). Under the Administrative Procedure additional point to an applicant Act (5 U.S.C. 553) the Department generally grant. Applicants for construction grants institution that has an endowment fund offers interested parties the opportunity to will use the same application as for which the 1998–1999 market value comment on proposed regulations. However, applicants for development grants. per full-time equivalent (FTE) student these amendments make procedural changes Estimated Range of Awards: was less than the comparable average only and do not establish new substantive $365,000–$400,000 per year for the 5- per FTE student at a similar type policy. Therefore, under 5 U.S.C. 553(b)(A), year development grant; and $800,000– institution. We will also award one the Secretary has determined that proposed $1,200,000 for 1-year construction additional point to an applicant rulemaking is not required. grants. institution that had 1998–1999 Pilot Project for Electronic Submission Estimated Average Size of Awards: expenditures for library materials per of Applications $400,000 per year for 5-year FTE student that were less than the comparable average per FTE student at In FY 2002, the U.S. Department of development grant and $1 million for 1- Education is continuing to expand its year construction grants. similar type institutions. For the purpose of these funding pilot project of electronic submission of Estimated Number of Awards: 1 considerations, an applicant must applications to include additional development grant and 6 construction demonstrate that the market value of its formula grant programs and additional grants. endowment fund per FTE student, and discretionary grant competitions. The Project Period: 60 months for library expenditures per FTE student, Title III, Part A Programs (CFDA Nos. development grants and 12 months for were less than the national averages for 84.031A, 84.031N, 84.031T, and construction grants. the year 1998–1999. 84.031W) are included in the pilot Note: The Department is not bound by any If a tie remains, after applying the project. If you are an applicant under a estimates in this notice. Applicants should additional point or points, we will Title III, Part A Program, you may periodically check the title III, part A web determine the ranking of applicants submit your application to us in either site for further information on this program. based on the lowest combined library electronic or paper format. The address is: http://www.ed.gov/offices/ expenditures per FTE student and The pilot project involves the use of OPE/HEP/idues/title3a.html. endowment values per FTE student. the Electronic Grant Application System Page Limit: We have established Applicable Regulations: (a) The (e-APPLICATION, formerly e-GAPS) mandatory page limits for the individual Education Department General portion of the Grant Administration and development grant, the cooperative Administrative Regulations (EDGAR) in Payment System (GAPS). We request arrangement development grant, and the 34 CFR parts 74, 75, 77, 82, 85, 86, 97, your participation in this pilot project. construction grant applications. You 98, and 99. (b) The regulations for this We shall continue to evaluate its must limit the application narrative to program in 34 CFR part 607. success and solicit suggestions for the equivalent of no more than 100 Applicability of Executive Order improvement. pages for the individual development 13202: Applicants that apply for If you participate in this e- grant or the individual construction construction funds under these APPLICATION pilot, please note the grant and 140 pages for the cooperative programs must comply with the following: arrangement development grant, using Executive Order 13202 signed by • Your participation is strictly the following standards: President Bush on February 17, 2001 voluntary.
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• You will not receive any additional Electronic Access to This Document Project Period: 48 months. point value or penalty because you You may view this document, as well Page Limit: The application narrative submit a grant application in electronic as all other Department of Education (Part C of the application in which the or paper format. selection criteria are addressed) must be • documents published in the Federal You can submit all grant documents Register, in text or Adobe Portable limited to the equivalent of no more electronically, including the Document Format (PDF) on the Internet than 50 pages using the following Application for Federal Assistance (ED at the following site: www.ed.gov/ standards: • A ‘‘page’’ is 8.5″ x 11″, on one side 424), Budget Information-Non- legislation/FedRegister. only, with 1″ margins at the top, bottom, Construction Programs (ED 524), and all To use PDF, you must have Adobe and both sides. necessary assurances and certifications. Acrobat Reader, which is available free • • Double space (no more than three Within three working days of at this site. If you have questions about lines per vertical inch) all text in the submitting your electronic application using PDF, call the U.S. Government application narrative, including titles, fax a signed copy of the Application for Printing Office (GPO), toll free, at 1– headings, footnotes, quotations, Federal Assistance (ED 424) to the 888–293–6498; or in the Washington, references, and captions, as well as all Application Control Center after DC area at (202) 512–1530. text in charts, tables, figures, and following these steps: Note: The official version of this document 1. Print ED 424 from the e- graphs. is the document published in the Federal • Use a font that is either 12-point or APPLICATION system. Register. Free Internet access to the official 2. Make sure that the institution’s edition of the Federal Register and the Code larger or no smaller than 10 pitch Authorizing Representative signs this of Federal Regulations is available on GPO (characters per inch). The page limit does not apply to the form. Access at: http://www.access.gpo.gov/nara/ cover sheet, the budget section, 3. Before faxing this form, submit index.html including the narrative budget your electronic application via the e- Program Authority: 20 U.S.C. 1057–1059d. justification, the assurances and APPLICATION system. You will receive Dated: April 26, 2002. certifications, the three-page abstract, an automatic acknowledgement, which the resumes, or the letters of support. will include a PR/Award number (an Sally L. Stroup, However, you must include all of the identifying number unique to your Assistant Secretary, Office of Postsecondary application narrative in Part C. application). Education. [FR Doc. 02–10711 Filed 4–30–02; 8:45 am] We will reject your application if— 4. Place the PR/Award number in the • You apply these standards and BILLING CODE 4000–01–U upper right hand corner of ED 424. exceed the page limit; or 5. Fax ED 424 to the Application • You apply other standards and Control Center at (202) 260–1349. DEPARTMENT OF EDUCATION exceed the equivalent of the page limit. • We may request that you give us Applicable Regulations: EDGAR in 34 original signatures on all other forms at [CFDA No. 84.335A] CFR parts 74, 75, 77, 79, 82, 85, 86, 97, a later date. 98 and 99. You may access the electronic grant Child Care Access Means Parents in In preparing applications, applicants application for the Title III, Part A School Program; Notice Inviting should pay particular attention to the Programs at: http://e-grants.ed.gov. Applications for New Awards for Fiscal requirements in section 427 of the We have included additional Year (FY) 2002 General Education Provisions Act information about the e-application Purpose of Program: The Child Care (GEPA), as detailed later in this notice. pilot project (see Parity Guidelines Access Means Parents In School Applicants must address the between Paper and Electronic (CCAMPIS) Program supports the requirements in section 427 in order to Applications) in the application participation of low-income parents in receive funding under this competition. package. postsecondary education through the Section 427 requires each applicant to For Applications or Further provision of campus-based childcare describe the steps it proposes to take for Information Contact: Darlene B. Collins, services. addressing one or more barriers (i.e., U.S. Department of Education, 1990 K Eligible Applicants: Institutions of gender, race, national origin, color, Street, NW, 6th Floor, Washington, DC higher education that awarded during disability, or age) that can impede 20202–8513. Telephone: (202) 502–7777 the preceding fiscal year, $350,000 or equitable access to, or participation in, or via Internet: [email protected]. more of Federal Pell Grant funds to the program. A restatement of If you use a telecommunications students enrolled at the institution. compliance with civil rights device for the deaf (TDD), you may call Applications Available: May 1, 2002. requirements is not sufficient to meet the Federal Information Relay Service Deadline for Transmittal of the requirements in section 427 of (FIRS) at 1–800–877–8339. Applications: June 3, 2002. GEPA. Because there are no program- Individuals with disabilities may Deadline for Intergovernmental specific regulations for the Child Care obtain this document in an alternative Review: August 5, 2002. Access Means Parents In School format (e.g., Braille, large print, Available Funds: $8.4 million. Program, applicants are encouraged to audiotape, or computer diskette) on Estimated Range of Awards: read the authorizing statute in section request to the program contact person $10,000—$300,000. An institution will 419N of the Higher Education Act of listed under FOR APPLICATIONS OR be eligible for a maximum grant award 1965, as amended (HEA). FURTHER INFORMATION CONTACT. equal to one (1) percent of its Federal Priority: Competitive Priority: Under Individuals with disabilities may Pell Grant disbursement with no grant 34 CFR 75.105 (c)(2)(i) and 20 U.S.C. obtain a copy of the application package being less than $10,000. 1070e(d) the Secretary gives preference in an alternative format by contacting Estimated Average Size of Awards: to applications that leverage significant that person. However, the Department is $84,000. local or institutional resources, not able to reproduce in an alternative Estimated Number of Awards: 100. including in-kind contributions to format the standard forms included in Note: The Department is not bound by any support the activities, and use a sliding the application package. estimates in this notice. fee scale for childcare services provided
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by a facility assisted under this grant in submit a grant application in electronic the Federal Information Relay Service order to support a high number of low- or paper format. (FIRS) at 1–800–877–8339. income parents pursuing postsecondary • You can submit all documents Individuals with disabilities may education at the institution. electronically, including the obtain this document in an alternative The Secretary awards up to 10 points Application for Federal Assistance (ED format (e.g., Braille, large print, to an application that meets this 424), Budget Information—Non- audiotape, or computer diskette) on competitive priority. These points are in Construction Programs (ED 524), and all request to the program contact person addition to any points the application necessary assurances and certifications. listed under FOR FURTHER INFORMATION earns under the selection criteria. • Within three working days of CONTACT. Selection Criteria: In evaluating an submitting your electronic application Individuals with disabilities may application for a new grant under this fax a signed copy of the Application for obtain a copy of the application package competition, the Secretary uses Federal Assistance (ED 424) to the in an alternative format by contacting selection criteria under 34 CFR 75.209 Application Control Center after that person. However, the Department is and 75.210 of the Education Department following these steps: not able to reproduce in an alternative General Administrative Regulations 1. Print ED 424 from the e- format the standard forms included in (EDGAR). The Secretary informs APPLICATION system. the application package. applicants in the application package of 2. Make sure that the institution’s Electronic Access to This Document: the selection criteria and factors, if any, Authorizing Representative signs this to be used for this competition and of form. You may view this document, as well the maximum weight assigned to each 3. Before faxing this form, submit as all other Department of Education criterion. your electronic application via the e- documents published in the Federal APPLICATION system. You will receive Register, in text or Adobe Portable Application Procedures: an automatic acknowledgement, which Document Format (PDF) on the Internet at the following site: www.ed.gov/ Note: Some of the procedures in these will include a PR/Award number (an instructions for transmitting applications identifying number unique to your legislation/FedRegister. differ from those in the Education application). To use PDF you must have the Adobe Department General Administrative 4. Place the PR/Award number in the Acrobat Reader, which is available free Regulations (EDGAR) (34 CFR 75.102). Under upper right hand corner of ED 424. at this site. If you have questions about the Administrative Procedure Act (5 U.S.C. 5. Fax ED 424 to the Application using PDF, call the U.S. Government 553) the Department generally offers Control Center at (202) 260–1349. Printing Office (GPO), toll free, at 1– interested parties the opportunity to • We may request that you give us 888–293–6498; or in the Washington, comment on proposed regulations. However, DC area at (202) 512–1530. these amendments make procedural changes original signatures on all other forms at Note: The official version of this document only and do not establish new substantive a later date. is the document published in the Federal policy. Therefore, under 5 U.S.C. 553(b)(A), You may access the electronic grant Register. Free Internet access to the official the Secretary has determined that proposed application for the Child Care Access edition of the Federal Register and the Code rulemaking is not required. Means Parents In School Program at: of Federal Regulations is available on GPO http://e-grants.ed.gov. Pilot Project for Electronic Submission Access at: http://www.access.gpo.gov/nara/ We have included additional index.html of Applications information about the e-APPLICATION In Fiscal Year 2002, the U.S. pilot project (see Parity Guidelines Program Authority: 20 U.S.C. 1070e. Department of Education is continuing between Paper and Electronic Dated: April 26, 2002. to expand its pilot project of electronic Applications) in the application Sally L. Stroup, submission of applications to include package. Assistant Secretary, Office of Postsecondary additional formula grant programs and For Applications Contact: Education Education. additional discretionary grant Publications Center (ED Pubs), P.O. Box [FR Doc. 02–10712 Filed 4–30–02; 8:45 am] competitions. The Child Care Access 1398, Jessup, MD 20794–1398. BILLING CODE 4000–01–U Means Parents In School Program, Telephone (toll free): 1–877–433–7827. CFDA No. 84.335A, is one of the FAX: (301) 470–1244. If you use a programs included in the pilot project. telecommunications device for the deaf DEPARTMENT OF EDUCATION If you are an applicant under the (TDD), you may call (toll free): 1–877– CCAMPIS Program, you may submit 576–7734. National Assessment Governing your application to us in either You may also contact ED Pubs at its Board; Meeting Web site: http://www.ed.gov/pubs/ electronic or paper format. AGENCY: edpubs.html. National Assessment The pilot project involves the use of Governing Board; Education. the Electronic Grant Application System Or you may contact ED Pubs at its e- ACTION: Notice of open meeting and (e-APPLICATION, formerly e-GAPS) mail address: [email protected]. partially closed meetings. portion of the Grant Administration and If you request an application from ED Payment System (GAPS). We request Pubs, be sure to identify this SUMMARY: This notice sets forth the your participation in this pilot project. competition as follows: CFDA No. schedule and proposed agenda of a We shall continue to evaluate its 84.335A. forthcoming meeting of the National success and solicit suggestions for FOR FURTHER INFORMATION CONTACT: Assessment Governing Board. This improvement. Karen W. Johnson, U.S. Department of notice also describes the functions of If you participate in this e- Education, 1990 K Street, NW, Room the Board. Notice of this meeting is APPLICATION pilot, please note the 7018, Washington, DC 20006. required under section 10(a)(2) of the following: Telephone: (202) 502–7525. FAX: (202) Federal Advisory Committee Act. This • Your participation is voluntary. 502–7864. document is intended to notify the • You will not receive any additional If you use a telecommunications general public of their opportunity to point value or penalty because you device for the deaf (TDD), you may call attend. Individuals who will need
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accommodations for a disability in order Phillips. The Board will then preview which are informative to the public and to attend the meeting (i.e. interpreting proposed policies on the NAEP consistent with the policy of section 5 services, assistive listening devices, program. From 10:30 a.m. to 12:30 p.m., U.S.C. 552b(c), will be available to the materials in alternative format) should the Board’s standing committees—the public within 14 days of the meeting. notify Munira Mwalimu at 202–357– Assessment Development Committee, Records are kept of all Board 6938 or at [email protected] no the Committee on Standards, Design, proceedings and are available for public later than May 3, 2002. We will attempt and Methodology, and the Reporting inspection at the U.S. Department of to meet requests after this date, but and Dissemination Committee will meet Education, National Assessment cannot guarantee availability of the in open session. Governing Board, Suite #825, 800 North requested accommodation. The meeting The full Board will reconvene in Capitol Street, NW., Washington, DC, site is accessible to individuals with closed session on May 17, 2002 from from 9 a.m. to 5 p.m. Eastern Standard disabilities. 12:30 p.m.–1:30 p.m. to receive results Time. of the NAEP 2001 Geography DATES: May 16–May 18, 2002. Dated: March 26, 2002. Assessment. This meeting must be TIMES: May 16: Executive Committee closed because the Commissioner of Roy Truby, Meeting: Open Session 4:30 p.m.–6:30 Education has not officially released Executive Director, National Assessment p.m.; Closed Session 6:30 p.m. to 7 p.m. results of the NAEP Geography Governing Board. May 17: Full Board Meeting: Open Assessment to the public and premature [FR Doc. 02–10688 Filed 4–30–02; 8:45 am] Session 8:30 a.m.–10:30 a.m.; disclosure of the information presented BILLING CODE 4000–01–M Committee Meetings: Assessment for review would be likely to Development Committee 10:30 a.m.– significantly frustrate implementation of 12:30 p.m.; Committee on Standards, a proposed agency action if conducted Design and Methodology, 10:30 a.m.– in open session. Such matters are DEPARTMENT OF ENERGY 12:30 p.m.; Reporting and protected by exemption 9(B) of section Dissemination Committee, 10:30 a.m.– 552b(c) of Title 5 U.S.C. Environmental Management Site- 12:30 p.m.; Full Board—Closed Meeting The full Board will reconvene in open Specific Advisory Board, Idaho 12:30 p.m.–1:30 p.m.; Open Meeting session on May 17, from 1:30 p.m. to National Engineering and 1:30 p.m.–2:45 p.m.; Closed Meeting, 3 2:45 p.m. to receive an update on the Environmental Laboratory p.m.–4:30 p.m. NAEP Economics Framework and to AGENCY: Department of Energy. May 18: Nominations Committee: receive a report on NAEP/NAGB Closed Meeting—8 a.m.–8:45 a.m.; Full reauthorization. From 3 p.m. to 4:30 ACTION: Notice of open meeting. Board Open Meeting, 9 a.m.–11:40 a.m.; p.m. the full Board will meet in closed Closed Meeting 11:40 a.m.–12 p.m. session from 3 p.m. to 4:30 p.m. to SUMMARY: This notice announces a Location: The Westin Embassy Row, review and discuss test items from the meeting of the Environmental 2100 Massachusetts Avenue, NW., main NAEP Science Assessment. Management Site-Specific Advisory Washington, DC 20008. Disclosure of the specific test items for Board (EM SSAB), Idaho National FOR FURTHER INFORMATION CONTACT: a test that has not yet been administered Engineering and Environmental Munira Mwalimu, Operations Office, would significantly frustrate Laboratory. The Federal Advisory National Assessment Governing Board, implementation of the NAEP program, Committee Act (Pub. L. No. 92–463, 86 800 North Capitol Street, NW., Suite and is therefore protected by exemption Stat. 770) requires that public notice of 825, Washington, DC, 20002–4233, 9(B) of section 552b(c) of Title 5 U.S.C. these meetings be announced in the Telephone: (202) 357–6938. On May 18, 2002, the Nominations Federal Register. SUPPLEMENTARY INFORMATION: The Committee will meet in closed session DATES: Tuesday, May 21, 2002, 8 a.m.– National Assessment Governing Board from 8 a.m. to 8:45 a.m. to review 6 p.m.; Wednesday, May 22, 2002, 8 is established under section 412 of the nominations received for vacant a.m.–5 p.m. National Education Statistics Act of positions on the Board. On May 18, 1994 (Title IV of the Improving 2002 the full Board will meet in open Public participation sessions will be America’s Schools Act of 1994, as session from 9 a.m. to 11:40 a.m. to held on: Tuesday, May 21, 2002, 12:15– amended by the No Child Left Behind receive recommendations and take 12:30 p.m. 5:45–6 p.m.; Wednesday, Act of 2002) (Public Law 103–382). action on the NAEP Reading Framework May 22, 2002, 11:45–12 noon, 4–4:15 The Board is established to formulate Revisit. The Board will then hear and p.m. policy guidelines for the National take action on Committee reports from These times are subject to change as Assessment of Education Progress 9:45 a.m. to 11:40 a.m. Subsequently, the meeting progresses. Please check (NAEP). The Board’s responsibilities from 11:40 a.m. to 12 noon, the full with the meeting facilitator to confirm include selecting subject areas to be Board will meet in closed session to these times. assessed, developing assessment review nominations for Board ADDRESSES: Ameritel Inn, 645 Lindsay objectives, developing appropriate vacancies. This discussion pertains Boulevard, Idaho Falls, Idaho. student achievement levels for each solely to internal personnel rules and FOR FURTHER INFORMATION CONTACT: grade and subject tested, developing practices of an agency and will disclose Ms. guidelines for reporting and information of a personal nature where Wendy Lowe, Idaho National disseminating results, and developing disclosure would constitute an Engineering and Environmental standards and procedures for interstate unwarranted invasion of personal Laboratory (INEEL) Citizens’ Advisory and national comparisons. privacy. As such, the discussions are Board (CAB) Facilitator, Jason On May 17, 2002 the full Board will protected by exemptions (2) and (6) of Associates Corporation, 477 Shoup convene in open session from 8:30 a.m.– section 552b(c) of Title 5 U.S.C. The Avenue, Suite 205, Idaho Falls, ID 10:30 a.m. The Board will approve the May 18, 2002 Board meeting will 83402, Phone (208) 522–1662 or visit agenda; receive the Executive Director’s adjourn at 12 noon. the Board’s Internet home page at report and a NAEP Update from the Summaries of the activities of the http://www.ida.net/users/cab. Deputy Commissioner of NCES, Gary closed sessions and related matters, SUPPLEMENTARY INFORMATION:
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Purpose of the Board SW, Washington, DC 20585 between 9 assistance). Comments, protests and The purpose of the Board is to make a.m. and 4 p.m., Monday through Friday interventions may be filed electronically recommendations to DOE and its except Federal holidays. Minutes will via the Internet in lieu of paper. See, 18 regulators in the areas of future use, also be available by writing to Ms. CFR 385.2001(a)(1)(iii) and the cleanup levels, waste disposition and Wendy Lowe, INEEL CAB Facilitator, instructions on the Commission’s web cleanup priorities at the INEEL. Jason Associates Corporation, 477 site under the ‘‘e-Filing’’ link. Shoup Avenue, Suite 205, Idaho Falls, Linwood A. Watson, Jr., Tentative Agenda Topics ID 83402 or by calling (208) 522–1662. Deputy Secretary. (Agenda topics may change up to the Issued at Washington, DC, on April 25, [FR Doc. 02–10749 Filed 4–30–02; 8:45 am] day of the meeting. Please contact Jason 2002. BILLING CODE 6717–01–P Associates for the most current agenda Belinda G. Hood, or visit the CAB’s Internet site at Acting Deputy Advisory Committee www.ida.net/users/cab/.) Management Officer. • DEPARTMENT OF ENERGY Overall Orientation for Newly [FR Doc. 02–10696 Filed 4–30–02; 8:45 am] Appointed Members to the INEEL BILLING CODE 6450–01–P Federal Energy Regulatory Citizens Advisory Board. Commission • Election of New Chair and Vice Chair for the Citizens Advisory Board. DEPARTMENT OF ENERGY [Docket No. RP96–389–047] • INEEL Site Monitoring. • Remedial Investigation and Federal Energy Regulatory Columbia Gulf Transmission Baseline Risk Assessment for Waste Commission Company; Notice of Negotiated Rate Area Group 7. Filing • Dispute Resolution for Pit 9 at the [Docket No. RP02–230–000] Radioactive Waste Management April 25, 2002. Colorado Interstate Gas Company; Complex. Take notice that on April 18, 2002, Notice of Proposed Changes in FERC • Status of Construction of the Columbia Gulf Transmission Company Gas Tarriff Advanced Mixed Waste Treatment (Columbia Gulf) tendered for filing the Project. April 25, 2002. following contract for disclosure of a • Status of the Geologic Repository Take notice that on April 22, 2002, negotiated rate trans for Spent Nuclear Fuel and High-level Colorado Interstate Gas Company (CIG) PAL Service Agreement No. 72640 between Waste. • tendered for filing as part of its FERC Columbia Gulf Transmission Company Status of INEEL’s Application for Gas Tariff, First Revised Volume No. 1, and Duke Energy Trading and Marketing, Funding under the Accelerated Cleanup the following tariff sheets, to become L.L.C. dated April 17, 2002 Program. effective May 23, 2002: • Stakeholder Involvement Plan for Transportation service is to the Water Integration Project. Ninth Revised Sheet No. 229A commence May 1, 2002 and end May Eighth Revised Sheet No. 229B 31, 2002 under the agreement. Public Participation Sixth Revised Sheet No. 281A Columbia Gulf states that it has served This meeting is open to the public. Eighth Revised Sheet No. 281C copies of the filing on all parties Written statements may be filed with CIG states that the tendered tariff identified on the official service list in the Board facilitator either before or sheets clarify that previously scheduled Docket No. RP96–389. after the meeting. Individuals who wish firm service quantities must be Any person desiring to be heard or to to make oral presentations pertaining to rescheduled in an intraday nomination protest said filing should file a motion agenda items should contact the Board cycle when a rate discount is granted to intervene or a protest with the Chair at the address or telephone after the scheduling of such quantities. Federal Energy Regulatory Commission, number listed above. Request must be Any person desiring to be heard or to 888 First Street, NE., Washington, DC received five days prior to the meeting protest said filing should file a motion 20426, in accordance with sections and reasonable provision will be made to intervene or a protest with the 385.214 or 385.211 of the Commission’s to include the presentation in the Federal Energy Regulatory Commission, Rules and Regulations. All such motions agenda. The Deputy Designated Federal 888 First Street, N.E., Washington, DC or protests must be filed in accordance Officer, Jerry Bowman, Assistant 20426, in accordance with Sections with section 154.210 of the Manager for Laboratory Development, 385.214 or 385.211 of the Commission’s Commission’s Regulations. Protests will Idaho Operations Office, U.S. Rules and Regulations. All such motions be considered by the Commission in Department of Energy, is empowered to or protests must be filed in accordance determining the appropriate action to be conduct the meeting in a fashion that with Section 154.210 of the taken, but will not serve to make will facilitate the orderly conduct of Commission’s Regulations. Protests will protestants parties to the proceedings. business. Every individual wishing to be considered by the Commission in Any person wishing to become a party make public comment will be provided determining the appropriate action to be must file a motion to intervene. Copies equal time to present their comments. taken, but will not serve to make of this filing are on file with the Additional time may be made available protestants parties to the proceedings. Commission and are available for public for public comment during the Any person wishing to become a party inspection. This filing may also be presentations. must file a motion to intervene. Copies viewed on the web at http:// of this filing are on file with the www.ferc.gov using the ‘‘RIMS’’ link, Minutes Commission and are available for public select ‘‘Docket#’’ and follow the The minutes of this meeting will be inspection. This filing may also be instructions (call 202–208–2222 for available for public review and copying viewed on the web at http:// assistance). Comments, protests and at the Freedom of Information Public www.ferc.gov using the ‘‘RIMS’’ link, interventions may be filed electronically Reading Room, 1E–190, Forrestal select ‘‘Docket#’’ and follow the via the Internet in lieu of paper. See, 18 Building, 1000 Independence Avenue, instructions (call 202–208–2222 for CFR 385.2001(a)(1)(iii) and the
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instructions on the Commission’s web filed by the applicant and by all other proposal, it is important either to file site under the ‘‘e-Filing’’ link. parties. A party must submit 14 copies comments or to intervene as early in the of filings made with the Commission process as possible. Linwood A. Watson, Jr., and must mail a copy to the applicant Comments, protests and interventions Deputy Secretary. and to every other party in the may be filed electronically via the [FR Doc. 02–10747 Filed 4–30–02; 8:45 am] proceeding. Only parties to the Internet in lieu of paper. See, 18 CFR BILLING CODE 6717–01–P proceeding can ask for court review of 385.2001(a)(1)(iii) and the instructions Commission orders in the proceeding. on the Commission’s web site under the However, a person does not have to ‘‘e-Filing’’ link. DEPARTMENT OF ENERGY intervene in order to have comments If the Commission decides to set the considered. The second way to application for a formal hearing before Federal Energy Regulatory participate is by filing with the an Administrative Law Judge, the Commission Secretary of the Commission, as soon as Commission will issue another notice [Docket No. CP02–188–000] possible, an original and two copies of describing that process. At the end of comments in support of or in opposition the Commission’s review process, a Copper Eagle Gas Storage, L.L.C.; to this project. The Commission will final Commission order approving or Notice of Petition consider these comments in denying a certificate will be issued. determining the appropriate action to be April 25, 2002. taken, but the filing of a comment alone Linwood A. Watson, Jr., Take notice that on April 19, 2002, will not serve to make the filer a party Deputy Secretary. Copper Eagle Gas Storage, L.L.C. to the proceeding. The Commission’s [FR Doc. 02–10741 Filed 4–30–02; 8:45 am] (Copper Eagle), Phoenix, Arizona, filed rules require that persons filing BILLING CODE 6717–01–P a petition for Exemption of Temporary comments in opposition to the project Acts and Operations from Certificate provide copies of their protests only to Requirements, pursuant to Rule 207 the party or parties directly involved in DEPARTMENT OF ENERGY (a)(5) of the Commission’s Rules of the protest. Practice and Procedure (18 CFR Persons who wish to comment only Federal Energy Regulatory 385.207(a)(5)), and section 7(c)(1)(B) of on the environmental review of this Commission the Natural Gas Act (15 U.S.C. project should submit an original and [Docket No. ER02–1600–000] 717(c)(1)(B)), seeking approval of an two copies of their comments to the exemption from certificate requirements Secretary of the Commission. Green Mountain Energy Company; to perform temporary activities related Environmental commenters will be Notice of Filing to drilling three stratigraphic test wells placed on the Commission’s to determine the technical, environmental mailing list, will receive April 24, 2002. environmental, and economic feasibility copies of the environmental documents, Take notice that on April 10, 2002, of developing a natural gas storage and will be notified of meetings GreenMountain.com Company tendered facility in Maricopa County, Arizona. associated with the Commission’s for filing that it has formally changed its Copies of this filing are on file with the environmental review process. name to Green Mountain Energy Commission and are available for public Environmental commenters will not be Company on October 4, 2000. The inspection. This filing may also be required to serve copies of filed company’s ownership, affiliate status, viewed on the web at http:// documents on all other parties. operations, and assets were unaffected www.ferc.gov using the ‘‘RIMS’’ link, However, the non-party commenters by the name change. select ‘‘Docket #’’ and follow the will not receive copies of all documents Any person desiring to intervene or to instructions (call 202–208–2222 for filed by other parties or issued by the protest this filing should file with the assistance). Commission (except for the mailing of Federal Energy Regulatory Commission, Any questions regarding the environmental documents issued by the 888 First Street, NE., Washington, DC application should be directed to J. Commission) and will not have the right 20426, in accordance with rules 211 and Gordon Pennington, Senior Counsel, El to seek court review of the 214 of the Commission’s rules of Paso Corporation, 555 11th St. NW., Commission’s final order. practice and procedure (18 CFR 385.211 Suite 750, Washington, DC 20004, The Commission may issue a and 385.214). Protests will be telephone (202) 637–3544. preliminary determination on non- considered by the Commission in There are two ways to become environmental issues prior to the determining the appropriate action to be involved in the Commission’s review of completion of its review of the taken, but will not serve to make this project. First, any person wishing to environmental aspects of the project. protestants parties to the proceeding. obtain legal status by becoming a party This preliminary determination Any person wishing to become a party to the proceedings for this project typically considers such issues as the must file a motion to intervene. All such should, on or before May 6, 2002, file need for the project and its economic motions or protests should be filed on with the Federal Energy Regulatory effect on existing customers of the or before the comment date, and, to the Commission, 888 First Street, NE., applicant, on other pipelines in the area, extent applicable, must be served on the Washington, DC 20426, a motion to and on landowners and communities. applicant and on any other person intervene in accordance with the For example, the Commission considers designated on the official service list. requirements of the Commission’s Rules the extent to which the applicant may This filing is available for review at the of Practice and Procedure (18 CFR need to exercise eminent domain to Commission or may be viewed on the 385.214 or 385.211) and the Regulations obtain rights-of-way for the proposed Commission’s web site at http:// under the NGA (18 CFR 157.10). A project and balances that against the www.ferc.gov using the ‘‘RIMS’’ link, person obtaining party status will be non-environmental benefits to be select ‘‘Docket #’’ and follow the placed on the service list maintained by provided by the project. Therefore, if a instructions (call 202–208–2222 for the Secretary of the Commission and person has comments on community assistance). Protests and interventions will receive copies of all documents and landowner impacts from this may be filed electronically via the
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Internet in lieu of paper; see 18 CFR The Commission reserves the right to contact Robert Pease at (202) 208–0131 385.2001(a)(1)(iii) and the instructions require a further showing that neither or by electronic mail at on the Commission’s web site under the public nor private interests will be ‘‘[email protected].’’ No telephone ‘‘e-Filing’’ link. adversely affected by continued communication bridge will be provided Comment Date: May 1, 2002. approval of Invenergy Marketing’s at this technical conference. issuances of securities or assumptions of Linwood A. Watson, Jr., Linwood A. Watson, Jr., liability. Deputy Secretary. Notice is hereby given that the Deputy Secretary. [FR Doc. 02–10659 Filed 4–30–02; 8:45 am] deadline for filing motions to intervene [FR Doc. 02–10657 Filed 4–30–02; 8:45 am] BILLING CODE 6717–01–P or protests, as set forth above, is May 16, BILLING CODE 6717–01–P 2002. Copies of the full text of the Order are DEPARTMENT OF ENERGY available from the Commission’s Public DEPARTMENT OF ENERGY Federal Energy Regulatory Reference Branch, 888 First Street, NE., Federal Energy Regulatory Commission Washington, DC 20426. The Order may Commission also be viewed on the Internet at http:/ [Docket Nos. ER02–1214–000] /www.ferc.fed.us/online/rims.htm (call [Docket No. RP02–229–000] 202–208–2222 for assistance). Invenergy Energy Marketing LLC; Comments, protests, and interventions Texas Eastern Transmission, L.P.; Notice of Issuance of Order may be filed electronically via the Notice of Refund Report April 25, 2002. internet in lieu of paper. See, 18 CFR April 25, 2002. Invenergy Energy Marketing LLC 385.2001(a)(1)(iii) and the instructions Take notice that on April 17, 2002 (Invenergy Marketing) submitted for on the Commission’s web site at http:/ Texas Eastern Transmission, LP (Texas filing an initial rate schedule under /www.ferc.fed.us/efi/doorbell.htm. Eastern) tendered for filing a refund which Invenergy Marketing will engage Linwood A. Watson, Jr., report of a flow through refund from in the sale of capacity, energy, Deputy Secretary. Dominion Transmission, Inc. (DTI) of a replacement reserves, and ancillary [FR Doc. 02–10742 Filed 4–30–02; 8:45 am] Take-or-Pay Refund, in Docket No. services at market-based rates, and for BILLING CODE 6717–01–P RP88–217–000, et al. reported on March the authority to reassign transmission 31,1997, as credits to Customers’ rights and to resell firm transmission invoices on their April 10, 2002 rights. Invenergy Marketing also DEPARTMENT OF ENERGY invoices. requested waiver of various Commission Texas Eastern states that copies of its regulations. In particular, Invenergy Federal Energy Regulatory filing have been mailed to all affected Marketing requested that the Commission customers and interested state Commission grant blanket approval [Docket Nos. EL00–95–000 and EL00–98– commissions. under 18 CFR part 34 of all future 000] Any person desiring to be heard or to issuances of securities and assumptions protest said filing should file a motion of liability by Invenergy Marketing. San Diego Gas & Electric Company, to intervene or a protest with the On April 16, 2002, pursuant to Complainant, v. Sellers of Energy and Federal Energy Regulatory Commission, delegated authority, the Director, Office Ancillary Services Into Markets 888 First Street, NE., Washington, DC of Markets, Tariffs and Rates-Central, Operated by the California 20426, in accordance with Sections granted requests for blanket approval Independent System Operator and the 385.214 or 385.211 of the Commission’s under part 34, subject to the following: California Power Exchange, Rules and Regulations. All such motions Any person desiring to be heard or to Respondents; Investigation of or protests must be filed on or before protest the blanket approval of Practices of the California Independent May 2, 2002. Protests will be considered issuances of securities or assumptions of System Operator and the California by the Commission in determining the liability by Invenergy Marketing should Power Exchange; Notice of Technical appropriate action to be taken, but will file a motion to intervene or protest with Conference not serve to make protestants parties to the Federal Energy Regulatory the proceedings. Any person wishing to Commission, 888 First Street, NE., April 24, 2002. become a party must file a motion to Washington, DC 20426, in accordance The Federal Energy Regulatory intervene. Copies of this filing are on with Rules 211 and 214 of the Commission Staff is convening a file with the Commission and are Commission’s Rules of Practice and technical conference to facilitate available for public inspection. This Procedure (18 CFR 385.211 and continued discussions between the filing may also be viewed on the web at 385.214). California Independent System Operator http://www.ferc.gov using the ‘‘RIMS’’ Absent a request to be heard in Corporation (CAISO), market link, select ‘‘Docket#’’ and follow the opposition within this period, Invenergy participants, state agencies and other instructions (call 202–208–2222 for Marketing is authorized to issue interested participants on the assistance). Comments, protests and securities and assume obligations or development of a revised market design interventions may be filed electronically liabilities as a guarantor, indorser, for the CAISO. Staff will issue an via the Internet in lieu of paper. See, 18 surety, or otherwise in respect of any agenda the week of May 6, 2002. The CFR 385.2001(a)(1)(iii) and the security of another person; provided conference will held in San Francisco, instructions on the Commission’s web that such issuance or assumption is for California, at the Renaissance Parc 55 site under the ‘‘e-Filing’’ link. some lawful object within the corporate Hotel, 55 Cyril Magnin Street, San purposes of Invenergy Marketing, Francisco, CA, on May 9 and 10, 2002, Linwood A. Watson, Jr., compatible with the public interest, and beginning at 9 a.m. Deputy Secretary. is reasonably necessary or appropriate For additional information concerning [FR Doc. 02–10748 Filed 4–30–02; 8:45 am] for such purposes. the conference, interested persons may BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY 385.2001(a)(1)(iii) and the instructions DEPARTMENT OF ENERGY on the Commission’s web site at http:/ Federal Energy Regulatory /www.ferc.fed.us/efi/doorbell.htm. Federal Energy Regulatory Commission Commission Linwood A. Watson, Jr., [Docket Nos. ER02–1336–000] Deputy Secretary. [Docket No. ER02–1578–000, et al.] Vandolah Power Company, L.L.C.; [FR Doc. 02–10743 Filed 4–30–02; 8:45 am] Public Service Company of New Notice of Issuance of Order BILLING CODE 6717–01–P Mexico, et al.; Electric Rate and April 25, 2002. Corporate Regulation Filings Vandolah Power Company, L.L.C. DEPARTMENT OF ENERGY April 23, 2002 (Vandolah) submitted for filing an The following filings have been made application to sell capacity, energy, and Federal Energy Regulatory with the Commission. The filings are ancillary services at market-based rates. Commission listed in ascending order within each Vandolah also requested waiver of docket classification. various Commission regulations. In [Docket No. ER02–1447–001] particular, Vandolah requested that the 1. Public Service Company of New Mexico Commission grant blanket approval Central Illinois Light Company; Notice under 18 CFR part 34 of all future of Filing [Docket No. ER02–1578–000] issuances of securities and assumptions Take notice that on April 17, 2002, of liability by Vandolah. April 24, 2002. Public Service Company of New Mexico On April 17, 2002, pursuant to (PNM) submitted for filing an executed delegated authority, the Director, Office Take notice that on April 18, 2002, service agreement, dated December 28, of Markets, Tariffs and Rates-Central, Central Illinois Light Company (CILCO) 2001, for firm point-to-point granted requests for blanket approval filed a Substitute Interconnection transmission service and certain under part 34, subject to the following: Agreement with the Village of Riverton. ancillary services, between PNM Any person desiring to be heard or to Copies of the filing were served on the protest the blanket approval of Transmission Development and affected customer and the Illinois Contracts (Transmission Provider) and issuances of securities or assumptions of Commerce Commission. liability by Vandolah should file a PNM International Business Any person desiring to intervene or to motion to intervene or protest with the Development (Transmission Customer), Federal Energy Regulatory Commission, protest this filing should file with the under the terms of PNM’s Open Access 888 First Street, NE., Washington, DC Federal Energy Regulatory Commission, Transmission Tariff. The agreement is 20426, in accordance with Rules 211 888 First Street, NE., Washington, DC for 28 MW of reserved transmission and 214 of the Commission’s Rules of 20426, in accordance with rules 211 and capacity (and certain ancillary services) Practice and Procedure (18 CFR 385.211 214 of the Commission’s rules of from the San Juan Generating Station and 385.214). practice and procedure (18 CFR 385.211 345kV Switchyard to the Luna 345kV Absent a request to be heard in and 385.214). Protests will be Switching Station and represents the opposition within this period, Vandolah considered by the Commission in Transmission Customer’s exercise of its is authorized to issue securities and determining the appropriate action to be Right of First Refusal to extend service assume obligations or liabilities as a taken, but will not serve to make under a predecessor (now expired) guarantor, indorser, surety, or otherwise protestants parties to the proceeding. agreement for one year (through in respect of any security of another Any person wishing to become a party calendar year 2002). PNM requests January 1, 2002, as the effective date for person; provided that such issuance or must file a motion to intervene. All such each agreement. PNM’s filing is assumption is for some lawful object motions or protests should be filed on within the corporate purposes of available for public inspection at its or before the comment date, and, to the offices in Albuquerque, New Mexico. Vandolah, compatible with the public extent applicable, must be served on the interest, and is reasonably necessary or Copies of the filing have been sent to applicant and on any other person PNM International Business appropriate for such purposes. designated on the official service list. The Commission reserves the right to Development, PNM Transmission This filing is available for review at the require a further showing that neither Development and Contracts, the New Commission or may be viewed on the public nor private interests will be Mexico Public Regulation Commission Commission’s web site at http:// adversely affected by continued and the New Mexico Attorney General. approval of Vandolah’s issuances of www.ferc.gov using the ‘‘RIMS’’ link, Comment Date: May 8, 2002. securities or assumptions of liability. select ‘‘Docket #’’ and follow the instructions (call 202–208–2222 for 2. Public Service Company of New Notice is hereby given that the Mexico deadline for filing motions to intervene assistance). Protests and interventions or protests, as set forth above, is May 17, may be filed electronically via the [Docket No. ER02–1579–000] 2002. Internet in lieu of paper; see 18 CFR Take notice that on April 17, 2002, Copies of the full text of the Order are 385.2001(a)(1)(iii) and the instructions Public Service Company of New Mexico available from the Commission’s Public on the Commission’s web site under the (PNM) submitted for filing two executed Reference Branch, 888 First Street, NE., ‘‘e-Filing’’ link. service agreements for firm point-to- Washington, DC 20426. The Order may Comment Date: May 9, 2002. point transmission service with Texas- also be viewed on the Internet at http:/ New Mexico Power Company (TNMP), /www.ferc.fed.us/online/rims.htm (call Linwood A. Watson, Jr., under the terms of PNM’s Open Access 202–208–2222 for assistance). Deputy Secretary. Transmission Tariff. The agreements are Comments, protests, and interventions [FR Doc. 02–10658 Filed 4–30–02; 8:45 am] for 6 MW and 15 MW (respectively) of may be filed electronically via the reserved transmission capacity from the BILLING CODE 6717–01–P internet in lieu of paper. See, 18 CFR Four Corners 345kV Switchyard to the
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Hidalgo 345kV Switching Station and Based Power Sales Standard Tariff, No. Duke requests that the proposed represent TNMP’s exercise of Right of 9 -MB (the Tariff) entered into with Service Agreement be permitted to First Refusal to continue service under Dynegy Power Marketing, Inc. become effective on May 1, 2002. Duke two predecessor (now expired) Cinergy and Dynegy Power Marketing, states that this filing is in accordance agreements through calendar year 2002. Inc. are requesting an effective date of with Part 35 of the Commission’s PNM requests January 1, 2002, as the April 1, 2002. Regulations, 18 CFR 35, and that a copy effective date for the agreements. PNM’s Comment Date: May 9, 2002. has been served on the North Carolina filing is available for public inspection 7. Celerity Energy of Colorado, LLC Utilities Commission. at its offices in Albuquerque, New Comment Date: May 9, 2002. [Docket No. ER02–1585–000] Mexico. Copies of the filing have been 11. Michigan Electric Transmission Take notice that on April 18, Celerity sent to TNMP, the New Mexico Public Company Regulation Commission and the New Energy of Colorado, LLC (Celerity) Mexico Attorney General. petitioned the Federal Energy [Docket No. ER02–1589–000] Comment Date: May 8, 2002. Regulatory Commission (Commission) Take notice that on April 18, 2002, for acceptance of Celerity Rate Schedule Michigan Electric Transmission 3. PJM Interconnection, L.L.C. FERC No. 1; the granting of certain Company (Michigan Transco) tendered [Docket No. ER02–1580–000] blanket approvals, including the for filing an executed revised Service Take notice that on April 17, 2002, authority to sell electricity at market- Agreement for Network Transmission PJM Interconnection, L.L.C. (PJM), filed based rates; and the waiver of certain Service with Wolverine Power with the Federal Energy Regulatory Commission regulations. Marketing Cooperative (Customer) Commission (Commission) amendments Celerity intends to engage in pursuant to the Joint Open Access to the PJM Open Access Transmission wholesale electric power and energy Transmission Service Tariff originally Tariff and the Amended and Restated purchases and sales as a marketer. filed on February 22, 2001 by Michigan PJM Operating Agreement to allocate Celerity is 85 percent owned by Transco and International Transmission more equitably charges and credits Caterpillar Power Systems, Inc., which Company (ITC). relating to PJM’s purchase or sale of produces electric power generation Michigan Transco is requesting an emergency energy equipment, and 15 percent owned by effective date of April 1, 2001. Customer Copies of this filing were served upon Celerity Energy, an Oregon LLC, which is taking service under the Service all PJM members and each state electric engages in the business of distributed Agreement in connection with utility regulatory commission in the generation products and services. Consumers Energy Company’s PJM region. PJM requests waiver of the Comment Date: May 9, 2002. (Consumers) Electric Customer Choice Commission’s notice requirements to program. 8. Cinergy Services, Inc. Copies of the filed agreement were permit an effective date of June 1, 2002 [Docket No. ER02–1586–000] served upon the Michigan Public for the amendments. Service Commission, ITC, and the Comment Date: May 8, 2002. Take notice that on April 18, 2002, Cinergy Services, Inc. (Cinergy) and Customer. 4. Idaho Power Company Federal Energy Sales, Inc. are requesting Comment Date: May 9, 2002. [Docket No. ER02–1581–000] a cancellation of Service Agreement 12. Michigan Electric Transmission No.108, under Cinergy Operating Take notice that on April 17, 2002, Company Companies, FERC Electric Cost-Based Idaho Power Company filed a Service Power Sales Tariff, FERC Electric Tariff [Docket No. ER02–1590–000] Agreement for Firm Point-to-Point Original Volume No. 6. Take notice that on April 18, 2002, Transmission Service between Idaho Cinergy requests an effective date of Michigan Electric Transmission Power Company and Dynegy Power April 19, 2002. Company (Michigan Transco) tendered Marketing, Inc., under its open access Comment Date: May 9, 2002. for filing an executed revised Service transmission tariff in the above- Agreement for Network and Firm and 9. Cinergy Services, Inc. captioned proceeding. Non-Firm Point to Point Transmission Comment Date: May 8, 2002. [Docket No. ER02–1587–000] Service with Quest Energy, L.L.C. 5. Idaho Power Company Take notice that on April 18, 2002, (Customer) pursuant to the Joint Open Cinergy Services, Inc., (Cinergy) and Access Transmission Service Tariff filed [Docket No. ER02–1583–000] Federal Energy sales, Inc., are requesting on February 22, 2002 by Michigan Take notice that on April 17, 2002, a cancellation of Service Agreement No. Transco and International Transmission Idaho Power Company filed a Service 108 under Cinergy operating Company (ITC). Michigan Transco is Agreement for Non-Firm Point-to-Point Companies, FERC Electric Market-based requesting an effective date of April 1, Transmission Service between Idaho Power Sales tariff, FERC Electric tariff 2002. Customer is taking service under Power Company and Dynegy Power original Volume No. 7. the Service Agreement in connection Marketing, Inc., under its open access Cinergy requests an effective date of with Consumers Energy Company’s transmission tariff in the above- April 19, 2002. (Consumers) Electric Customer Choice captioned proceeding. Comment Date: May 9, 2002. program. Comment Date: May 8, 2002. 10. Duke Electric Transmission Copies of the filed agreement were 6. Cinergy Services, Inc. served upon the Michigan Public [Docket No. ER02–1588–000] Service Commission, ITC, and the [Docket No. ER02–1584–000] Take notice that on April 18, 2002, Customer. Take notice that on April 18, 2002, Duke Electric Transmission (Duke), a Comment Date: May 9, 2002. Cinergy Services, Inc. (Cinergy) on division of Duke Energy Corporation, 13. Wisconsin Electric Power Company behalf of the Cincinnati Gas and Electric tendered for filing a Service Agreement Company tendered for filing a with Duke Power, for Firm [Docket No. ER02–1591–000] Wholesale Market-Based Service Transmission Service under Duke’s Take notice that on April 19, 2002, Agreement under its Wholesale Market- Open Access Transmission Tariff. Wisconsin Electric Power Company
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(Wisconsin Electric) tendered for filing Schedule FPC No. 2 and is the two Notice of the proposed cancellation a fully executed Dynamic Parties’ Electric Power Agreement. has not been served upon any party Interconnection Operations SIGECO and APGI ask that the because such cancellation affects no Coordination Agreement (Agreement) extension be made effective as of May purchasers under B.L. England’s FERC between Wisconsin Electric and the 1, 2002. Copies of the filing were served Electric Tariff, Original Volume No. 1. Board of Light and Power City of upon APGI and the Indiana Utility Comment Date: May 10, 2002. Marquette. Regulatory Commission. Wisconsin Electric respectfully Comment Date: May 10, 2002. 21. DTE East China, LLC requests an effective date of October 30, 16. Wisconsin Electric Power Company 2001. [Docket No. ER02–1599–000] Comment Date: May 10, 2002. [Docket No. ER02–1594–000] Take notice that on April 19, 2002, Take notice that on April 19, 2002, 14. Southern Company Services, Inc. DTE East China, LLC (DTE East China) Wisconsin Electric Power Company submitted for filing, pursuant to Section [Docket No. ER02–1592–000] (Wisconsin Electric) tendered for filing 205 of the Federal Power Act, and Part a fully executed Facilities Agreement Take notice that on April 19, 2002, 35 of the Federal Energy Regulatory (Agreement) between Wisconsin Electric Southern Company Services, Inc. (SCS), Commission’s (Commission) and the City of Oconomowoc, acting on behalf of Alabama Power regulations, a Petition for authorization Company, Georgia Power Company, Wisconsin. Wisconsin Electric respectfully requests an effective date of to make sales of electric capacity and Gulf Power Company, Mississippi energy at negotiated rates subject to a Power Company, and Savannah Electric March 19, 2002. Comment Date: May 10, 2002. cost-based ceiling and for certain and Power Company (collectively waivers of the Commission’s Southern Companies), filed four 17. TME Energy Services regulations. transmission service agreements under [Docket No. ER02–1595–000] the Open Access Transmission Tariff of Comment Date: May 10, 2002. Take notice that on April 19, 2002, Southern Companies (FERC Electric TME Energy Services tendered for filing 22. Wisconsin Electric Power Company Tariff, Fourth Revised Volume No. 5) a Petition for Blanket Authorizations, (Tariff). Specifically, these agreements [Docket No. OA01–8–002] Certain Waivers, and Order Approving are as follows: (1) One firm point-to- Rate Schedule Governing-Market Based Take notice that on April 16, 2002, point transmission service agreement Sales of Energy and Capacity. Wisconsin Electric Power Company executed by SCS, as agent for Southern Comment Date: May 10, 2002. (WEPCO) tendered for filing with the Companies, and UBS AG, London Federal Energy Regulatory Commission Branch (Service Agreement No. 448); (2) 18. The Detroit Edison Company (Commission) its compliance filing One non-firm point-to-point [Docket No. ER02–1596–000] pursuant to the Commission’s March 27, transmission service agreement Take notice that on April 19, 2002, 2002 order, FERC ¶ 61,329(2002). executed by SCS, as agent for Southern The Detroit Edison Company (Detroit Comment Date: May 16, 2002. Companies, and UBS AG, London Edison) tendered for filing a Service Branch (Service Agreement No. 449); (3) Agreement for wholesale power sales Standard Paragraphs One firm point-to-point transmission transactions (the Service Agreements) service agreement executed by SCS, as under Detroit Edison’s Wholesale Power E. Any person desiring to intervene or agent for Southern Companies, and Sales Tariff (WPS–2), FERC Electric to protest this filing should file with the Dynegy Power Marketing, Inc. to reflect Tariff No. 3 (the WPS–2 Tariff) between Federal Energy Regulatory Commission, the continuation of service under an Detroit Edison and TXU Energy Trading 888 First Street, NE., Washington, DC agreement with its predecessor Company, LP. 20426, in accordance with Rules 211 company, Electric Clearinghouse, Inc. Comment Date: May 10, 2002. and 214 of the Commission’s Rules of (First Revised Service Agreement No. 19. Deepwater Power, LLC Practice and Procedure (18 CFR 385.211 184); and (4) One non-firm point-to- and 385.214). Protests will be point transmission service agreement [Docket No. ER02–1597–000] considered by the Commission in executed by SCS, as agent for Southern Take notice that on April 19, 2002, determining the appropriate action to be Companies, and Dynegy Power Deepwater Power LLC (Deepwater) filed taken, but will not serve to make Marketing, Inc. to reflect the with the Federal Energy Regulatory continuation of service under an protestants parties to the proceeding. Commission (Commission) a notice of Any person wishing to become a party agreement with its predecessor cancellation of FERC Electric Tariff, company, Electric Clearinghouse, Inc. must file a motion to intervene. All such Original Volume No. 1. motions or protests should be filed on (First Revised Service Agreement No. 5). Notice of the proposed cancellation or before the comment date, and, to the Comment Date: May 10, 2002. has not been served upon any party extent applicable, must be served on the because such cancellation affects no 15. Southern Indiana Gas & Electric applicant and on any other person Company purchasers under Deepwater’s FERC Electric Tariff, Original Volume 1. designated on the official service list. [Docket No. ER02–1593–000] Comment Date: May 10, 2002. This filing is available for review at the Take notice that on April 19, 2002, Commission or may be viewed on the 20. B.L. England Power, LLC Southern Indiana Gas & Electric Commission’s web site at http:// Company (SIGECO) and Alcoa Power [Docket No. ER02–1598–000] www.ferc.gov using the ‘‘RIMS’’ link, Generating Inc. (APGI) tendered for Take notice that on April 19, 2002, select ‘‘Docket #’’ and follow the filing pursuant to the provisions of B.L. England Power LLC (B.L. England) instructions (call 202–208–2222 for Section 205 of the Federal Power Act filed with the Federal Energy Regulatory assistance). Protests and interventions and the Commission’s Regulations, an Commission (Commission) a notice of may be filed electronically via the extension of SIGECO’s Rate Schedule cancellation of FERC Electric Tariff, Internet in lieu of paper; see 18 CFR FPC No. 29, which is APGI’s Rate Original Volume No. 1. 385.2001(a)(1)(iii) and the instructions
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on the Commission’s web site under the Energy Regulatory Commission in this determining the appropriate action to be ‘‘e-Filing’’ link. proceeding. taken, but will not serve to make Comment Date: May 8, 2002. protestants parties to the proceeding. Magalie R. Salas, Any person wishing to become a party 3. Tucson Electric Power Company Secretary. must file a motion to intervene. All such [FR Doc. 02–10662 Filed 4–30–02; 8:45 am] [Docket No. ER02–1349–001] motions or protests should be filed on BILLING CODE 6717–01–P Take notice that on April 17, 2002, or before the comment date, and, to the Tucson Electric Power Company extent applicable, must be served on the tendered for filing a Network Operating applicant and on any other person DEPARTMENT OF ENERGY Agreement between Tucson Electric designated on the official service list. Federal Energy Regulatory Power Company and the Navajo Tribal This filing is available for review at the Commission Utility Authority as Supplement No. 1 Commission or may be viewed on the to the Amended Service Agreement for Commission’s web site at http:// [Docket No. ER02–79–002, et al.] Network Integration Transmission www.ferc.gov using the ‘‘RIMS’’ link, Service filed on March 20, 2002. select ‘‘Docket #’’ and follow the Southern California Edison Company, Comment Date: May 8, 2002. instructions (call 202–208–2222 for et al.; Electric Rate and Corporate assistance). Protests and interventions Regulation Filings 4. Central Illinois Light Company may be filed electronically via the April 24, 2002. [Docket No. ER02–1432–001] Internet in lieu of paper; see 18 CFR The following filings have been made Take notice that on April 18, 2002, 385.2001(a)(1)(iii) and the instructions with the Commission. The filings are Central Illinois Light Company (CILCO), on the Commission’s web site under the listed in ascending order within each filed a substitute executed ‘‘e-Filing’’ link. docket classification. Interconnection Agreement with Corn Linwood A. Watson, Jr., Belt Energy Corporation. Deputy Secretary. 1. Southern California Edison Company Copies of the filing were served on the [FR Doc. 02–10740 Filed 4–30–02; 8:45 am] [Docket No. ER02–79–002] affected customer and the Illinois BILLING CODE 6717–01–P Take notice that on April 17, 2002, Commerce Commission. Southern California Edison Company Comment Date: May 9, 2002. (SCE) submitted for filing with the 5. Central Illinois Light Company DEPARTMENT OF ENERGY Federal Energy Regulatory Commission (Commission) a compliance filing [Docket No. ER02–1447–001] Federal Energy Regulatory regarding letter agreements between Take notice that on April 18, 2002, Commission SCE and Energy Unlimited, Inc (Energy Central Illinois Light Company (CILCO) [Docket No. EC02–63–000, et al.] Unlimited), Pegasus Power Partners, filed a Substitute Interconnection LLC (Pegasus) and High Desert Power Agreement with the Village of Riverton. TECO Power Services Corporation, et Project, LLC (High Desert). Copies of the filing were served on the al.; Electric Rate and Corporate The purpose of this filing is to comply affected customer and the Illinois Regulation Filings with the Commission’s March 18, 2002 Commerce Commission. Order in Docket No. ER02–79–001, Comment Date: May 9, 2002. April 22, 2002. The following filings have been made Southern California Edison Company, 6. Mohawk River Funding IV, L.L.C. 98 FERC ¶ 61,304 (2002), Granting with the Commission. The filings are Request for Rehearing in Part and [Docket No. ER02–1582–000] listed in ascending order within each Denying Rehearing in Part. Take notice that on April 17, 2002, docket classification. Copies of this filing were served upon Mohawk River Funding IV, L.L.C. 1. TECO Power Services Corporation, Public Utilities Commission of the State submitted a Notice of Succession Mosbacher Power Partners, L.P. of California, Energy Unlimited, pursuant to 18 CFR 35.16 and 131.51 of Pegasus, and High Desert. the Federal Energy Regulatory [Docket No. EC02–63–000] Comment Date: May 8, 2002. Commission’s (Commission) Take notice that on April 15, 2002, 2. Duke Energy Sandersville, LLC regulations. Poquonock River Funding, TECO Power Services Corporation L.L.C. has changed its name to Mohawk (TECO Power) and Mosbacher Power [Docket No. ER02–1024–002] River Funding IV, L.L.C. and effective Partners, L.P. (MPP) tendered for filing Take notice that on April 17, 2002, March 18, 2002 succeeded to an application requesting all necessary Duke Energy Sandersville, LLC filed a Poquonock’s Rate Schedule FERC No. 1, authorizations under Section 203 of the notice of status change with the Federal Market-Based Rate Schedule filed in Federal Power Act for the sale by MPP Energy Regulatory Commission Docket No. ER01–2799–000, which was to TECO Power of MPP’s interest (Commission) in connection with the effective September 13, 2001. (indirectly through affiliates) in the Commission’s Order authorizing a Comment Date: May 8, 2002. Commonwealth Chesapeake Power change in upstream control of Engage Station, a 315 MW simple-cycle, oil- Standard Paragraph Energy America LLC and Frederickson fired, combustion turbine electric Power L.P. resulting from a transaction E. Any person desiring to intervene or generating peaking facility in Accomack involving Duke Energy Corporation and to protest this filing should file with the County, Virginia. Westcoast Energy Inc. (Engage Energy Federal Energy Regulatory Commission, Comment Date: May 6, 2002. 888 First Street, NE., Washington, DC America, LLC, Frederickson Power L.P., 2. PacifiCorp Duke Energy Corp., 98 FERC ¶ 61,207 20426, in accordance with Rules 211 (2002)). and 214 of the Commission’s Rules of [Docket No. EC02–64–000] Copies of the filing were served upon Practice and Procedure (18 CFR 385.211 Take notice that on April 16, 2002, all parties on the official service list and 385.214). Protests will be PacifiCorp (PacifiCorp) filed with the compiled by the Secretary of the Federal considered by the Commission in Federal Energy Regulatory Commission
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(Commission) an application pursuant energy under the FERC Rate Schedule First Revised Service Agreement reflects to section 203 of the Federal Power Act No. 1; (3) grant authority to sell the assignment of the rights and and part 33 of the Regulations of the ancillary services at market-based rates; obligations of Service Agreement No. Commission for authorization of a (4) accept for filing Service Agreement 248, Revised and Restated disposition of jurisdictional facilities No. 1; and (5) grant such waivers and Interconnection Agreement by and whereby PacifiCorp will transfer its blanket authorizations as the between Monroe Power Company electric distribution and transmission Commission has granted in the past to (Monroe) and Georgia Power dated as of properties located within the county of other nonfranchised entities with February 29, 2000, to MPC Generating, Linn, Oregon to Emerald People’s market-based rate authority. pursuant to the Assignment and Utility District (EPUD). The transfer will Comment Date: May 8, 2002. Assumption Agreement among Monroe, be accomplished by payment in cash MPC Generating, and Georgia Power 5. Bayou Cove Peaking Power, LLC plus the assumption of liabilities by effective as of February 1, 2002. EPUD according to the Asset Transfer [Docket No. ER02–1572–000] Comment Date: May 8, 2002. Agreement between PacifiCorp and Take notice that on April 17, 2002, 8. American Electric Power Service EPUD. Bayou Cove Peaking Power, LLC (Bayou Corporation The transfer shall become effective Cove) filed, under section 205 of the upon entry of the stipulated judgment Federal Power Act (FPA), an application [Docket No. ER02–1575–000] filed in the Oregon state court action, requesting that the Commission (1) Take notice that on April 17, 2002, Emerald People’s Utility District v. accept for filing its proposed market- American Electric Power Service PacifiCorp, et al., Linn County Circuit based FERC Rate Schedule No. 1; (2) Corporation submitted for filing an Court Case No. 99–2656. PacifiCorp grant blanket authority to make market- unexecuted Interconnection and filed no Section 205 rate proceeding in based wholesale sales of capacity and Operation Agreement, dated March, this application, and states that the energy under the FERC Rate Schedule 2002, between Appalachian Power transaction will have no impact on No. 1; (3) grant authority to sell Company (APCo) and Allegheny Energy competition, rates or regulation. ancillary services at market-based rates; Supply Company, LLC. The agreement Applicant requests waiver of any and (4) grant such waivers and blanket is pursuant to the AEP Companies’ applicable filing requirements under the authorizations as the Commission has Open Access Transmission Service Commission’s Rules and Regulations as granted in the past to other Tariff (OATT) that has been designated may be necessary to approve the nonfranchised entities with market- as the Operating Companies of the transfer. Applicant also has requested based rate authority. American Electric Power System FERC Commission approval of the transaction Comment Date: May 8, 2002. Electric Tariff Second Revised Volume on or before May 31, 2002. No. 6, effective June 15, 2000. Comment Date: May 7, 2002. 6. KeySpan Port Jefferson Energy APCo requests an effective date of Center LLC June 15, 2002. Copies of APCo’s filing 3. Puget Sound Energy, Inc. [Docket No. ER02–1573–000] have been served upon Allegheny [Docket No. EL02–77–000] Energy Supply Company, LLC and upon Take notice that on April 17, 2002, Virginia State Corporation Commission. Take notice that on April 17, 2002, KeySpan-Port Jefferson Energy Center Comment Date: May 8, 2002. Puget Sound Energy, Inc. (PSE), LLC (Port Jefferson) tendered for filing tendered for filing a Petition for pursuant to Section 205 of the Federal 9. International Transmission Company Declaratory Order Regarding Power Act its proposed FERC Electric [Docket No. ER02–1576–000] Reclassification of Facilities, pursuant Tariff No. 1. Take notice that on April 17, 2002, to the Commission’s Order in Docket Port Jefferson seeks authority to sell International Transmission Company ER02–605, dated February 15, 2002. energy and capacity, as well as ancillary (ITC) tendered for filing the Generator Puget Sound Energy, Inc. 98 FERC ¶ services, at market-based rates, together Interconnection and Operating 61,168. PSE requests an effective date of with certain waivers and preapprovals. Agreement between ITC and FirstEnergy January 1, 2002 for the above-described Port Jefferson also seeks authority to Generation Corp. (FirstEnergy) (the reclassification. sell, assign, or transfer transmission Agreement), as a service agreement Copies of the filing were served on the rights that it may acquire in the course under ITC’s Open Access Transmission all persons on the Commission’s Service of its marketing activities. Tariff (FERC Electric Tariff, Original list in ER02–605, PSE’s jurisdictional Port Jefferson requests waiver of the Volume No. 1) and is designated as customers, and the Washington State Commission’s 60-day notice Service Agreement No. 131. The Utilities and Transportation requirement to allow an effective date of Agreement provides the general terms Commission. May 7, 2002 for its proposed rate and conditions for the interconnection Comment Date: May 17, 2002. schedule. and parallel operation of FirstEnergy’s Comment Date: May 8, 2002. 4. Big Cajun I Peaking Power LLC electric generating facility located in 7. Southern Company Services, Inc. Sumpter Township, Michigan. The [Docket No. ER02–1571–000] Agreement shall continue from the Take notice that on April 17, 2002, [Docket No. ER02–1574–000] effective date through the date on which Big Cajun I Peaking Power LLC (Big Take notice that on April 17, 2002, the Facility permanently ceases Cajun I Peaking) filed with the Federal Southern Company Services, Inc., as commercial operations unless Energy Regulatory Commission agent for Georgia Power Company terminated earlier as permitted and (Commission), under section 205 of the (Georgia Power), submitted for filing the provided for under the Agreement. Federal Power Act (FPA), an application First Revised Service Agreement No. Comment Date: May 8, 2002. requesting that the Commission (1) 248, Revised and Restated 10. New England Power Pool accept for filing its proposed market- Interconnection Agreement by and based FERC Rate Schedule No. 1; (2) between MPC Generating, LLC (MPC [Docket No. ER02–1577–000] grant blanket authority to make market- Generating) and Georgia Power (the Take notice that on April 17, 2002, based wholesale sales of capacity and First Revised Service Agreement). The the New England Power Pool (NEPOOL)
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Participants Committee submitted the DEPARTMENT OF ENERGY must also serve a copy of the document Eighty-Third Agreement Amending New on that resource agency. England Power Pool Agreement (the Federal Energy Regulatory k. Description of Project: The Eighty-Third Agreement), which Commission proposed project using the U.S. Army proposes changes to the Financial Corps of Engineer’s Willamette Falls Notice of Application Accepted for Assurance Policy for NEPOOL Dam and impoundment would consist Filing and Soliciting Motions To Members, which is Attachment L to the of: (1) A proposed intake structure, (2) Intervene, Protests, and Comments NEPOOL Tariff, and the Financial three proposed 100-foot-long, 12-foot- diameter steel penstock, (3) a proposed Assurance Policy for NEPOOL Non- April 24, 2002. Participant Transmission Customers, powerhouse containing three generating Take notice that the following units having a total installed capacity of which is Attachment M to the NEPOOL hydroelectric application has been filed 27 MW, (4) a proposed 0.25-mile-long, Tariff, each as previously restated in the with the Commission and is available 15-kV transmission line, and (5) Eighty-Third Agreement Amending New for public inspection: appurtenant facilities. England Power Pool Agreement, and to a. Type of Application: Preliminary The project would have an annual the New England Power Pool Billing Permit. generation of 89.1 GWh that would be Policy, which is Attachment N to the b. Project No.: 11915–000. sold to a local utility. NEPOOL Tariff. The Eighty-Third c. Date filed: March 21, 2001. l. Copies of this filing are on file with Agreement also proposes minor, d. Applicant: Symbiotics, LLC. the Commission and are available for clarifying changes to Sections 21.2’’ and e. Name of Project: Willamette Falls public inspection. This filing may be 21.2(d) of the Restated NEPOOL Project. viewed on the Commission’s web site at Agreement. f. Location: On the Willamette River, http://www.ferc.gov using the ‘‘RIMS’’ in Clackamas County, Oregon. The link, select ‘‘Docket #’’ and follow the The NEPOOL Participants Committee project would utilize the existing U.S. states that copies of these materials were instructions ((202)208–2222 for Army Corps of Engineers Dam. The assistance). sent to the NEPOOL Participants, Non- proposed development under this Participant Transmission Customers and m. Preliminary Permit—Anyone preliminary permit is for additional desiring to file a competing application the New England state governors and capacity at the already authorized for preliminary permit for a proposed regulatory commissions. Willamette Falls Project FERC No. 2233 project must submit the competing Comment Date: May 8, 2002. licensed to Portland General Electric application itself, or a notice of intent to and Smurfit Newsprint Corp. This Standard Paragraph file such an application, to the preliminary permit if issued will not Commission on or before the specified E. Any person desiring to intervene or prevent the current co-licensees from comment date for the particular to protest this filing should file with the expanding their project at relicensing. application (see 18 CFR 4.36). Federal Energy Regulatory Commission, g. Filed Pursuant to: Federal Power Submission of a timely notice of intent 888 First Street, NE., Washington, DC Act, 16 USC §§ 791(a)–825(r). allows an interested person to file the 20426, in accordance with Rules 211 h. Applicant Contact: Mr. Brent L. competing preliminary permit and 214 of the Commission’s Rules of Smith, President, Northwest Power application no later than 30 days after Practice and Procedure (18 CFR 385.211 Services, Inc., P.O. Box 535, Rigby, ID the specified comment date for the 83442, (208) 745–8630. and 385.214). Protests will be particular application. A competing i. FERC Contact: Robert Bell, (202) considered by the Commission in preliminary permit application must 219–2806. determining the appropriate action to be conform with 18 CFR 4.30(b) and 4.36. j. Deadline for filing motions to n. Preliminary Permit—Any qualified taken, but will not serve to make intervene, protests and comments: 60 development applicant desiring to file a protestants parties to the proceeding. days from the issuance date of this competing development application Any person wishing to become a party notice. must submit to the Commission, on or must file a motion to intervene. All such All documents (original and eight before a specified comment date for the motions or protests should be filed on copies) should be filed with: Magalie R. particular application, either a or before the comment date, and, to the Salas Secretary, Federal Energy competing development application or a extent applicable, must be served on the Regulatory Commission, 888 First notice of intent to file such an applicant and on any other person Street, NE, Washington, DC 20426. application. Submission of a timely designated on the official service list. Comments, protests and interventions notice of intent to file a development This filing is available for review at the may be filed electronically via the application allows an interested person Commission or may be viewed on the Internet in lieu of paper; see 18 CFR to file the competing application no Commission’s web site at http:// 385.2001(a)(1)(iii) and the instructions later than 120 days after the specified www.ferc.gov using the ‘‘RIMS’’ link, on the Commission’s web site under the comment date for the particular select ‘‘Docket #’’ and follow the ‘‘e-Filing’’ link. Please include the application. A competing license instructions (call 202–208–2222 for project number (P–12124–000) on any application must conform with 18 CFR assistance). Protests and interventions comments or motions filed. 4.30(b) and 4.36. may be filed electronically via the The Commission’s rules of practice o. Notice of Intent—A notice of intent Internet in lieu of paper; see 18 CFR and procedure require all interveners must specify the exact name, business 385.2001(a)(1)(iii) and the instructions filing documents with the Commission address, and telephone number of the on the Commission’s web site under the to serve a copy of that document on prospective applicant, and must include ‘‘e-Filing’’ link. each person in the official service list an unequivocal statement of intent to for the project. Further, if an intervener submit, if such an application may be Magalie R. Salas, files comments or documents with the filed, either a preliminary permit Secretary. Commission relating to the merits of an application or a development [FR Doc. 02–10661 Filed 4–29–02; 8:45 am] issue that may affect the responsibilities application (specify which type of BILLING CODE 6717–01–P of a particular resource agency, they application). A notice of intent must be
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served on the applicant(s) named in this agency’s comments must also be sent to particular resource agency, they must public notice. the Applicant’s representatives. also serve a copy of the document on p. Proposed Scope of Studies under Magalie R. Salas, that resource agency. Permit—A preliminary permit, if issued, k. The existing Vermillion Project does not authorize construction. The Secretary. [FR Doc. 02–10660 Filed 4–30–02; 8:45 am] consists of: (1) A 4,234-foot-long earth- term of the proposed preliminary permit fill dam; (2) Lake Edison, with a 125,035 would be 36 months. The work BILLING CODE 6717–01–P acre-foot storage capacity at 7,642 feet; proposed under the preliminary permit (3) a service spillway at the left would include economic analysis, DEPARTMENT OF ENERGY abutment with a single manually preparation of preliminary engineering plans, and a study of environmental operated radial gate 15 feet wide by 8 Federal Energy Regulatory feet high, and an auxiliary spillway at impacts. Based on the results of these Commission studies, the Applicant would decide the right abutment with an ungated whether to proceed with the preparation Notice of Application Accepted for chute discharging into an ungated of a development application to Filing and Soliciting Motions to channel; (4) a man-made outlet channel construct and operate the project. Intervene and Protests extending 1,300 feet to Mono Creek; and q. Comments, Protests, or Motions to (5) a 3-kW Pelton-wheel turbine located Intervene—Anyone may submit April 25, 2002. in the outlet structure used to recharge comments, a protest, or a motion to Take notice that the following batteries in the valve house. intervene in accordance with the hydroelectric application has been filed l. A copy of the application is on file requirements of rules of practice and with the Commission and is available with the Commission and is available for public inspection. procedure, 18 CFR 385.210, .211, .214. for public inspection. This filing may a. Type of Application: Application In determining the appropriate action to also be viewed on the web at http:// take, the Commission will consider all for new license. b. Project No.: 2086–035. www.ferc.gov using the ‘‘RIMS’’ link— protests or other comments filed, but select ‘‘Docket #’’ and follow the only those who file a motion to c. Date filed: August 30, 2001. d. Applicant: Southern California instructions (call 202–208–2222 for intervene in accordance with the Edison. assistance). A copy is also available for Commission’s Rules may become a e. Name of Project: Vermillion Valley inspection and reproduction at the party to the proceeding. Any comments, Project. address in item h above. protests, or motions to intervene must f. Location: On Mono Creek in Fresno m. Anyone may submit a protest or a be received on or before the specified County, near Shaver Lake, California. motion to intervene in accordance with comment date for the particular The project affects federal lands in the the requirements of Rules of Practice application. Sierra National Forest, covering a total r. Filing and Service of Responsive of 2,202 acres. and Procedure, 18 CFR 385.210, Documents—Any filings must bear in g. Filed Pursuant to: Federal Power 385.211, and 385.214. In determining all capital letters the title Act, 16 U.S.C. 791 (a)—825(r). the appropriate action to take, the ‘‘COMMENTS’’, ‘‘NOTICE OF INTENT h. Applicant Contact: Thomas J. Commission will consider all protests TO FILE COMPETING APPLICATION’’, McPheeters, Manager, Northern Hydro filed, but only those who file a motion ‘‘COMPETING APPLICATION’’, Region, Southern California Edison to intervene in accordance with the ‘‘PROTEST’’, ‘‘MOTION TO Company, 54205 Mountain Poplar Road, Commission’s Rules may become a INTERVENE’’, as applicable, and the P.O. Box 100, Big Creek, California party to the proceeding. Any protests or Project Number of the particular 93605 (559) 893–3646. motions to intervene must be received application to which the filing refers. i. FERC Contact: Jim Fargo at (202) on or before the specified deadline date Any of the above-named documents 219–2848; e-mail [email protected]. for the particular application. must be filed by providing the original j. Deadline for filing motions to All filings must (1) bear in all capital and the number of copies provided by intervene and protests: 60 days from the letters the title ‘‘PROTEST’’ or the Commission’s regulations to: The issuance date of this notice. Secretary, Federal Energy Regulatory All documents (original and eight ‘‘MOTION TO INTERVENE;’’ (2) set Commission, 888 First Street, NE., copies) should be filed with: Magalie R. forth in the heading the name of the Washington, DC 20426. An additional Salas, Secretary, Federal Energy applicant and the project number of the copy must be sent to Director, Division Regulatory Commission, 888 First application to which the filing of Hydropower Administration and Street, NE., Washington, DC 20426. responds; (3) furnish the name, address, Compliance, Federal Energy Regulatory Comments, motions to intervene and and telephone number of the person Commission, at the above-mentioned protests may be filed electronically via protesting or intervening; and (4) address. A copy of any notice of intent, the Internet in lieu of paper. See 18 CFR otherwise comply with the requirements competing application or motion to 385.2001(a)(1)(iii) and the instructions of 18 CFR 385.2001 through 385.2005. intervene must also be served upon each on the Commission’s web site (http:// Agencies may obtain copies of the representative of the Applicant www.ferc.gov) under the ‘‘e-Filing’’ application directly from the applicant. specified in the particular application. link. A copy of any protest or motion to s. Agency Comments—Federal, state, The Commission’s Rules of Practice intervene must be served upon each and local agencies are invited to file require all intervenors filing documents representative of the applicant specified comments on the described application. with the Commission to serve a copy of in the particular application. A copy of the application may be that document on each person on the obtained by agencies directly from the official service list for the project. Linwood A. Watson, Jr., Applicant. If an agency does not file Further, if an intervenor files comments Deputy Secretary. comments within the time specified for or documents with the Commission [FR Doc. 02–10744 Filed 4–30–02; 8:45 am] filing comments, it will be presumed to relating to the merits of an issue that BILLING CODE 6717–01–P have no comments. One copy of an may affect the responsibilities of a
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DEPARTMENT OF ENERGY particular resource agency, they must of the Applicant specified in the also serve a copy of the document on particular application. Federal Energy Regulatory that resource agency. Federal, state, and local agencies are Commission Comments, motions to intervene, invited to file comments on the protests and requests for cooperating described application. A copy of the Notice of Application for Surrender of agency status may be filed electronically application may be obtained by agencies Exemption and Lowering of Reservoir via the Internet in lieu of paper. See 18 directly from the applicant. If an agency and Soliciting Comments, Motions to CFR 385.2001(a)(1)(iii) and the does not file comments within the time Intervene, and Protests instructions on the Commission’s web specified for filing comments, it will be April 25, 2002. site (http://www.ferc.gov) under the ‘‘e- presumed to have no comments. One copy of an agency’s comments must also Take notice that the following Filing’’ link. be sent to the Applicant’s hydroelectric application has been filed l. Description of Surrender: The representatives. with the Commission and is available existing Dundee Project is not o. Procedural schedule: The for public inspection. operational and the generating units application will be processed according a. Type of Application: Surrender of have been removed. The existing project to the following accelerated milestones Exemption and Lowering of Reservoir. consists of: (1) A 14-foot high by 130- (from filing date). Revisions to these b. Project No.: 5972–017. feet long concrete spillway dam; (2) a milestones will be made when the c. Date Filed: March 15, 2002. 267-acre reservoir at elevation 27.4 feet Commission determines it necessary to d. Applicant: Dundee Water Power msl; (3) a powerhouse; (4) an 80-foot do so: and Land Company. long tailrace; (5) a 0.4-mile long e. Name of Project: Dundee transmission line and switchyard; and Notice of the availability of the EA—3 Hydroelectric Project. (6) appurtenant facilities. The reservoir months f. Location: The project is located on also serves as a water supply. The Ready for the Commission’s decision on the Passaic River near the Towns of applicant proposes to surrender its the application—3.5 months Begin dam modification construction— Garfield and Clifton, Bergen and Passaic exemption and permanently lower the 4 months Counties, New Jersey. The project does reservoir by 30 inches to increase the dam’s stability for public safety reasons. Complete dam modification not affect federal lands. construction—6.5 months g. Filed Pursuant to: 18 CFR 4.102. The applicant proposes to accomplish h. Applicant Contact: Emad Sidhom, this by removing 30’’ from the top of the Linwood A. Watson, Jr., P.E., Senior Project Engineer, United dam. Deputy Secretary. Water, 200 Lake Shore Drive, Haworth, m. Locations of the Application: A [FR Doc. 02–10745 Filed 4–30–02; 8:45 am] NJ 07641, (201) 225–6804. copy of the application is on file with BILLING CODE 6717–01–P i. FERC Contact: Questions about this the Commission and is available for notice can be answered by Jack Hannula public inspection. This filing may also at (202) 219–0116. The Commission be viewed on the web at http:// DEPARTMENT OF ENERGY cannot accept comments, motions to www.ferc.gov using the ‘‘RIMS’’ link— intervene or protests sent by e-mail; select ‘‘Docket #’’ and follow the Federal Energy Regulatory these documents must be filed as instructions (call 202–208–2222 for Commission described below. assistance). A copy is also available for [Docket No. RM01–10–000] j. Cooperating agencies: We are asking inspection and reproduction at the Federal, state, local, and tribal agencies address in item h above. Standards of Conduct for with jurisdiction and/or special n. Individuals desiring to be included Transmission Providers; Notice of expertise with respect to environmental on the Commission’s mailing list should Staff Conference issues to cooperate with us in the so indicate by writing to the Secretary preparation of the environmental of the Commission. April 25, 2002. document. Agencies who would like to Anyone may submit comments, Take notice that on May 21, 2002, the request cooperating status should follow motions to intervene or protests in Federal Energy Regulatory Commission the instructions for filing comments accordance with the requirements of staff will hold a public conference to described in item k below. Rules of Practice and Procedure, 18 CFR discuss the proposed revisions to the k. Deadline for filing comments, 385.210, 385.211, 385.214. In gas and electric standards of conduct motions to intervene, protests, and determining the appropriate action to governing transmission providers and requests for cooperating agency status: take, the Commission will consider all their energy affiliates issued in this 60 days from issuance date of this protests or other comments filed, but docket on September 27, 2001.1 To notice. only those who file a motion to focus the discussion at the conference, All documents (original and eight intervene in accordance with the a staff analysis of the comments copies) should be filed with: Magalie R. Commission’s Rules may become a received to date is attached to this Salas, Secretary, Federal Energy party to the proceeding. Any comments, notice. The conference will begin at 9:30 Regulatory Commission, 888 First motions to intervene or protests must be a.m. at the Commission’s offices, 888 Street, NE., Washington, DC 20426. received on or before the specified date First Street NE., Washington, DC in the The Commission’s Rules of Practice for the particular application. Commission’s Meeting Room. All require all intervenors filing documents Any filings must bear in all capital interested persons are invited to attend. with the Commission to serve a copy of letters the title ‘‘COMMENTS’’, To reflect the changing structure of that document on each person on the ‘‘MOTIONS TO INTERVENE’’ or the energy industry, in this docket the official service list for the project. ‘‘PROTESTS’’, as applicable, and the Commission proposed to adopt one set Further, if an intervenor files comments Project Number of the particular 1 Standards of Conduct for Transmission or documents with the Commission application to which the filing refers. A Providers, 66 FR 50919 (Sept. 27, 2001), IV FERC relating to the merits of an issue that copy of any motion to intervene must Stats. & Regs. Regulations Preambles ¶ 32,555 (Sep. may affect the responsibilities of a also be served upon each representative 27, 2001).
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of standards of conduct to govern the www.capitolconnection.gmu.edu and transmission provider must treat all relationships between regulated gas and click on ‘‘FERC.’’ transmission customers, affiliated and electric transmission providers and all In addition, National Narrowcast unaffiliated, on a non-discriminatory their energy affiliates, broadening the Network’s Hearing-On-The-Line service basis. definition of an energy affiliate covered covers all FERC meetings live by In the NOPR, the Commission by the standards of conduct, from the telephone so that interested persons can proposed to update its standards of more narrow definition in the existing listen at their desks, from their homes, conduct to reflect the current realities of regulations found in parts 37 and 161. or from any phone, without special the natural gas and electric industries. This proposal is intended to eliminate equipment. Billing is based on time on- When the gas standards of conduct were the potential for a transmission line. Call (202) 966–2211 for further first adopted, in the 1980’s, the provider’s market power over details. Commission was responding to transportation to be transferred to its Questions about the conference concerns that pipelines had created affiliated energy businesses because the should be directed to: Demetra Anas, marketing affiliates, and as a result, existing rules do not cover all affiliate Office of General Counsel, Federal pipelines were giving their marketing relationships. Energy Regulatory Commission, 888 affiliates preferential treatment. See The Commission received comments First Street, NE., Washington, DC 20426, Order No. 497 et. seq.5 More recently, to the NOPR from 154 interested 202–208–0178, [email protected]. the Commission promulgated the participants from all segments of the Linwood A. Watson, Jr., electric standards of conduct in Order 6 natural gas and electric industries, trade Deputy Secretary. No. 889 simultaneously with Order associations, and state and federal No. 888, which required electric regulatory agencies. In light of these Staff Analysis of the Major Issues Raised transmission providers to offer open comments, in the attached analysis of in the Comments access transmission service. the comments, the Commission staff In this rulemaking, the Commission With the move toward open access suggests some possible changes in the proposed to adapt existing regulations transmission service for both the gas proposals in the NOPR, specifically, to reflect the evolving energy market by and electric industries, the energy changes to the proposed definition of an consolidating the standards of conduct market structure is vastly different now ‘‘energy affiliate.’’ The purpose of the and applying them uniformly to all than it was 15 or even 5 years ago. The public conference is to discuss the regulated transmission providers standards of conduct have, for the most issues outlined in the attached staff (natural gas pipelines and transmitting part, remained unchanged, while the paper. public utilities). Standards of Conduct energy market structures have changed The conference will be organized in a for Transmission Providers.2 The NOPR significantly. town meeting, or technical conference, also broadened the definition of an As new types of market participants, format to allow discussion of specific energy affiliate from the more narrow both affiliated and unaffiliated, grow drafting options for the regulatory text. definition in the existing regulations.3 and change, more entities compete for Attendees who want to propose In this paper, staff provides its analysis access to transmission service. alternatives to the regulatory text in the of the major issues raised by the Moreover, with the changes in the size attached staff paper should come commenters in response to the NOPR. and scope of transmission providers prepared to share specific proposed Further analysis will be necessary to resulting from mergers, the transmission language. Also, the participation of evaluate the implications of the D.C. providers and their affiliates are people familiar with the business Circuit Court’s recent decision in engaged in both gas and electric operations of the transmission providers Dominion Resources Inc. v. FERC.4 5 Order No. 497, 53 FR 22139 (June 14, 1988), and their energy affiliates is particularly I. Background FERC Stats. & Regs. 1986–1990 ¶ 30,820 (1988); invited. Participants are encouraged to Order No. 497–A, order on reh’g, 54 FR 52781 (Dec. offer assessments of the quantitative The standards of conduct are one 22, 1989), FERC Stats. & Regs. 1986–1990 ¶ 30,868 impacts of the proposed rule and the method used by the Commission to (1989); Order No. 497–B order extending sunset benefits to be obtained by the proposed limit the ability of the transmission date, 55 FR 53291 (Dec. 28, 1990), FERC Stats. & provider, a natural monopoly, to extend Regs. 1986–1990 ¶ 30,908 (1990); Order No. 497–C, rule. The order of the discussion at the order extending sunset date, 57 FR 9 (Jan. 2, 1992), conference will follow the organization its market power over transmission to FERC Stats. & Regs. 1991–1996 ¶ 30,934 (1991), of the attached staff paper: the other energy markets by giving its reh’g denied, 57 FR 5815 (Feb. 18, 1992), 58 FERC definition of an energy affiliate, affiliates unduly preferential treatment. ¶ 61,139 (1992); Tenneco Gas v. FERC (affirmed in Currently, the standards of conduct part and remanded in part), 969 F.2d 1187 (D.C. Cir. application of the rules to the bundled 1992); Order No. 497–D, order on remand and sales function for retail native load, the require that: (1) a transmission extending sunset date, 57 FR 58978 (Dec. 14, 1992), independent functioning requirement, provider’s transmission function FERC Stats. & Regs. 1991–1996 ¶ 30,958 (Dec. 4, information disclosure rules, and the operates independently from its 1992); Order No. 497–E, order on reh’g and marketing and sales functions; and (2) a extending sunset date, 59 FR 243 (Jan. 4, 1994), posting of specified information. FERC Stats. & Regs. 1991–1996 ¶ 30,987 (Dec. 23, The Capitol Connection patrons in the 1993); Order No. 497–F, order denying reh’g and 2 Washington, DC area will receive Standards of Conduct for Transmission granting clarification, 59 FR 15336 (Apr. 1, 1994), Providers, 66 FR 50919 (Oct. 5, 2001), IV FERC 66 FERC ¶ 61,347 (Mar. 24, 1994); and Order No. notices regarding the broadcast of the Stats. & Regs. Regulations Preambles ¶ 32,555 (Sep. 497–G, order extending sunset date, 59 FR 32884 conference. It also will be available, for 27, 2001). (June 27, 1994), FERC Stats. & Regs. 1991–1996 a fee, live over the Internet, via C-Band 3 The gas standards of conduct are codified at Part ¶ 30,996 (June 17, 1994). Satellite, and via telephone 161 of the Commission’s regulations, 18 CFR Part 6 Open Access Same-Time Information System 161 (2001), and the electric standards of conduct (Formerly Real-Time Information Network) and conferencing. Persons interested in are codified at Part 37 of the Commission’s Standards of Conduct, 61 FR 21737 (May 10, 1996), receiving the broadcast, or who need regulations, 18 CFR Part 37 (2001). FERC Stats. & Regs., Regulations Preambles January further information, should contact 4 Dominion Resources, Inc., And Consolidated 1991–1996 ¶ 31,035 (Apr. 24, 1996); Order No. 889– David Reininger or Julia Morelli at the Natural Gas Co., 89 FERC ¶ 61,1652 (1999), order A, order on reh’g, 62 FR 12484 (Mar. 14, 1997), III on compliance filing, 91 FERC ¶ 61,140 (2000), FERC Stats. & Regs. ¶ 31,049 (Mar. 4, 1997); Order Capitol Connection (703–993–3100) as order denying reh’g, 93 FERC ¶ 61,214 (2000), No. 889–B, reh’g denied, 62 FR 64715 (Dec. 9, soon as possible or visit the Capitol vacated and remanded (D.C. Circuit No. 01–1169, 1997), II FERC Stats. & Regs. ¶ 31,253 (Nov. 25, Connection web site at http:// Slip Op. Issued April 19, 2002). 1997).
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transactions. As customers of The NOPR also solicited comments on controls transmission capacity or buys, sells, transmission companies compete for specific additional policy suggestions, trades or administers natural gas or electric access to the transmission service, a such as structural remedies, capacity energy or engages in financial transactions limits, revising capacity allocation relating to the sale or transmission of natural transmission provider’s market power gas or electric energy. over transmission could be transferred methods, disgorgement of opportunity to its affiliated energy businesses cost and prohibiting profit sharing Proposed Section 358.3(d). Under this because the existing rules do not cover mechanisms. For the most part, the definition, the NOPR proposed to all affiliate relationships. commenters, which were predominantly govern the relationship between the Therefore, the NOPR proposed to from the gas industry on these policy transmission provider and affiliated combine the standards of conduct so suggestions, argued that there was no producers, gatherers, LDCs and that the regulations address the evidence that justified the need for processors. This definition generated a evolution in the gas and electric implementing, on a generic basis, the lot of comments from virtually all industries, including the convergence of additional policy suggestions suggested industry groups arguing that the many gas and electric companies. The in the NOPR. Very few commenters definition of energy affiliates was overly NOPR also proposed that the standards supported any of the measures. These broad, suggesting that some narrowing of conduct would govern the measures are not discussed in this of the definition would be appropriate. Since the standards of conduct seek to relationship between the transmission paper. prohibit undue preferences and thereby provider and its energy affiliates, However, some of the comments the transfer of market power from the broadening the definition of energy raised significant substantive issues, transmission provider to its affiliates, affiliate to reflect the changes in which are discussed herein. the term ‘‘energy affiliate’’ must require competitive markets. Under the II. Discussion the transmission business to operate proposed definition of energy affiliates, This paper discusses substantive independently from more of its energy the transmission provider would be issues that generated the most affiliates than are covered by the required to treat its bundled sales comments. The scope of the proposed existing rules. A narrow definition of function for retail native load as an rule yielded the greatest volume of energy affiliates would allow the energy affiliate. The proposed definition comments. Therefore, the first two transmission function to continue to of energy affiliates would also eliminate sections highlight the issues relating to: share employees and information with the exemption in the current standards (1) the definition of energy affiliate, and some of its energy affiliates who could of conduct for producers, gatherers, (2) whether to treat the bundled sales then receive an unfair advantage in the processors and local distribution function for retail native load as a competitive marketplace. On the other companies (LDCs) that only engage in marketing function. The third section hand, too broad a definition of ‘‘energy on-system sales. Finally, the NOPR addresses issues related to the affiliate’’ would limit some of the proposed that any offer of a discount for requirement for the transmission efficiencies to be gained from vertical any transmission service made by the function to operate independently. The integration. The issue to be decided by transmission provider must be fourth section highlights the current the Commission is whether the costs announced to all potential customers policy differences on information associated with requiring the solely by posting on the OASIS or disclosure under the gas and electric independent functioning of the Internet. This was to ensure that all standards of conduct compared to the transmission provider from a broad parties have equal and timely access to NOPR’s proposals. The fifth section range of affiliates exceed the costs discount information in the fast-paced addresses commenters’ concerns associated with potential marketplace. relating to the requirement to post anticompetitive behavior. In response to the NOPR, the organizational charts and job Commission received 154 sets of descriptions on the Internet or OASIS. 1. Clarifying the Definition of Energy comments, plus one reply comment, Finally, the last section discusses the Affiliate from natural gas pipelines, electric proposed requirement to post discount Affiliates not engaged or involved in utilities, LDCs, producers, gatherers, information at the time a discount is transmission transactions: Thirteen marketers, industrials, end users, munis, offered. entities, including Ad Hoc Marketer, coops, ISOs, trade associations, one city, INGAA and mostly natural gas and state and federal agencies. This A. Issues Concerning the Definition of pipelines, oppose the proposed paper provides staff’s preliminary views An Energy Affiliate definition of energy affiliates because it on the most significant issues. The current standards of conduct only does not require the energy affiliate to Some of the NOPR’s initiatives were govern the relationship between the be engaged or involved in transmission generally supported by the commenters. regulated transmission provider and its transactions on the transmission Specifically, the proposal to develop a marketing affiliate and/or wholesale provider’s system. These commenters single set of standards of conduct was merchant function. The NOPR proposed urge the definition of energy affiliates to endorsed by companies involved in the to govern the relationship between the be narrowed to only apply to affiliates converging energy industry because transmission provider and all of its that are involved in transportation on they currently operate under both the energy affiliates to eliminate the affiliated transmission providers’ electric and gas standards of conduct. In loophole in the current regulations that systems. addition, commenters supported the does not prohibit a transmission Staff disagrees with the commenters. proposals to exempt a Commission- provider from giving other affiliates an Although an affiliate may not be directly approved RTO from the standards of undue preference or preferential access involved in transmission transactions, conduct, and to permit a transmission to information. Therefore, the NOPR the energy commodity market is closely owner that participates in an RTO but defined the term energy affiliate broadly linked to the activities in the does not control or operate its as, transmission market. The transmission transmission facilities to request an any entity affiliated with a transmission market and commodity markets are so exemption from the standards of provider that engages in or is involved in interconnected that a transmission conduct. transmission transactions or manages or provider does have the ability to operate
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its transmission system in a manner as operations of jurisdictional transmission Holding and service companies to give a trading affiliate an undue facilities and would mandate typically are not participants in the preference or to provide the trading unnecessary duplication of jointly energy or transmission market and affiliate with unduly preferential operated facilities. INGAA and others would not be considered energy information. For example, a point out that governing the relationship affiliates. As discussed above, only transmission constraint directly impacts between affiliated transmission affiliates engaged in financial the value of the commodity being providers would be inconsistent with transactions that are involved in or transported and preferential access to recent Commission policy. They cite the engaged in the energy commodity or information about such a constraint Commission’s orders that required transmission markets will be considered could provide a significant benefit to an Dominion Transmission, Inc. to apply an energy affiliate. Therefore, the final affiliate engaged in trading of the the gas standards of conduct to its rule should clarify that the definition of commodity, even if the trader is not energy affiliates as a merger condition. energy affiliate does not include holding using the affiliated transmission There, the Commission specifically or service companies that do not engage provider. This is of particular excluded affiliated transmission in or are involved in transmission importance in the electric power market providers from the definition of energy transactions in U.S. energy markets. because electric power cannot be affiliates because they are already This would avoid the problem practicably stored in large amounts. In subject to the non-discrimination highlighted in the comments of these circumstances, Staff is concerned provisions of the standards of conduct.7 potentially prohibiting legitimate that the transmission provider could Staff agrees that jurisdictional communications between the extend its market power over pipelines coordinating transactions with transmission company and the holding transmission to the other businesses or affiliated pipelines or holding upstream or service company. could operate its transmission system to or downstream capacity on other Although, there may be situations unduly benefit an affiliate. Therefore, pipelines is not a concern. Similarly, where information from the the definition of energy affiliates should coordination of transmission activities transmission company could flow to an not be revised to require the affiliate to or sharing of information between energy affiliate through a holding or be engaged or involved in a affiliated electric transmission providers service company, the purposes of the transmission transaction. is not a concern. Nor does it appear that NOPR can be achieved by prohibiting Trading and financial affiliates: communications between regulated gas the holding or service companies from Several commenters, including Ad Hoc transmission providers and regulated acting as conduits for sharing Marketers, INGAA, one natural gas electric transmission providers would information between the transmission pipeline and four electric transmission be a problem. This is because the provider and other energy affiliates. providers oppose or request clarification transmission activities of gas pipelines Therefore, the final rule should include on defining energy affiliates to include and electric transmission providers are a provision prohibiting any affiliate entities that trade power or are engaged adequately regulated under the open from acting as a conduit for sharing in financial transactions. Entities access rules. Moreover, the focus of the information with an energy affiliate. involved in the trading of power or in standards of conduct are to prevent This proposed regulatory revision financial transactions related to the sale, transmission market power from should be reflected in the prohibited purchase or transmission of power are extending to other products or services, disclosure provisions of section an integral part of the energy so the transmission provider to 358.5(b), which are discussed later in commodity and transmission markets. transmission provider communications this document. As discussed above, the transmission should not undermine the purpose of Foreign affiliates: Thirteen market and commodity markets are so the rule. Since this was not the intent commenters, including INGAA, six interconnected that a transmission of the NOPR, the definition of energy natural gas pipelines, five electric provider has the ability to operate its affiliates should be clarified to exclude transmission providers and Shell transmission system in a manner so as affiliated transmission providers. objected to the definition of energy to give a trading affiliate an undue Holding or service companies: Several affiliates to the extent that it includes preference or to provide the trading commenters, including INGAA, foreign affiliates. They are concerned affiliate with unduly preferential Dominion, EEI and Williams, argue that that transmission providers will be information. In these circumstances, the definition of energy affiliates could required to treat affiliates in Europe, Staff is concerned that the transmission be construed to include service or South America and the Caribbean as provider could extend its market power holding companies because the energy affiliates. Staff sees no reason to over transmission to the trading of definition includes affiliates that engage be concerned about the possibility that energy commodities or financial in financial transactions related to the a transmission provider will extend its transactions involving energy transmission of natural gas or market power by giving foreign affiliates commodities. Therefore, trading and electricity. The commenters argue that an undue preference, where the foreign financial affiliates should be included in this could limit the ability of senior affiliates do not participate in the energy the definition of energy affiliates, to the officers and directors of the holding or markets in the United States. Therefore, extent that they are engaged in service companies to exercise their the final rule should clarify that transactions in the energy commodity or fiduciary duties for their subsidiaries. definition of energy affiliates excludes transmission market. foreign affiliates that do not participate Pipeline affiliates: Twenty-seven 7 Dominion Resources, Inc. and Consolidated in the U.S. energy markets. However, a entities, the majority of which came Natural Gas Co., 89 FERC ¶ 61,162 (1999), order on transmission provider should treat a compliance filing, 91 FERC ¶ 61,140 (2000), order from the gas pipeline industry, pointed denying reh’g, 93 FERC ¶ 61,214 (2000), vacated foreign affiliate that participates in U.S. out that the definition of energy affiliate and remanded, (D.C. Cir. No. 01–1169 Slip. energy markets, by either buying, selling would appear to require transmission Opinion issued on April 19, 2002). Even though the or trading natural gas or electric energy, providers to treat affiliated transmission Commission required Dominion to apply the as an energy affiliate. standards of conduct to its energy affiliates, it did providers as energy affiliates. Many not go so far as to require Dominion to apply the In addition, where a foreign affiliate argue that such a broad definition of standards of conduct to its affiliated transmission has an ownership interest in a energy affiliate would restrict the joint providers. jurisdictional transmission provider that
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affiliate is, by virtue of its ownership 2. Should the Definition of Energy the transmission provider and energy interests, participating in the U.S. Affiliate include Producers, Gatherers affiliates that are subject to state energy markets. For example, a joint and LDCs? regulation is misdirected. The venture U.S. pipeline transmission Under the proposed definition of Commission has ample authority to provider would have to treat its energy affiliates, transmission providers ensure that the interstate pipeline treats Canadian affiliates that buy, sell or trade would be required to apply the all customers, affiliated and unaffiliated, natural gas or electric energy or engage on a non-discriminatory basis by standards of conduct to their 9 in or are involved in transmission relationships with their affiliated regulating the conduct of the pipeline. transactions in U.S. energy markets as producers, gatherers, intrastate The NOPR did not, in any way, propose to regulate the affiliates’ conduct. The an energy affiliate. pipelines, processors and LDCs. The real issue is not whether the NOPR proposed to eliminate the Affiliates buying power for Commission has the legal authority to exemption of Order No. 497, which themselves: Several commenters, require pipelines to function permitted the natural gas pipelines to including Dominion, Calpine, and KN, independently of state regulated share employees and information argued that the Commission needs to affiliates. The issue is whether it is the between its interstate transmission clarify the definition of energy affiliates correct policy to adopt. because including the terms ‘‘buy,’’ business and its affiliated producers, 8 In determining whether to adopt this ‘‘sell,’’ or ‘‘administer’’ could be gatherers and LDCs. policy, the Commission has to balance construed to include affiliated entities Ten entities, consisting mostly of the costs to the transmission provider that are purchasing power for their own producers and unaffiliated gas and its affiliated producers associated consumption, for example, a marketers, supported the proposed with separating shared functions against communications affiliate that is definition of energy affiliate, focusing the benefit to competition and the purchasing power to heat its office on LDCs. They asserted that: (1) elimination of discriminatory behavior. building. Under the NOPR, if an affiliate Conditions have changed since Order As noted by many of the commenters, is simply ‘‘buying’’ power for its own No. 497 was promulgated and LDCs there will be costs, and for some consumption and not using the compete more vigorously for access to transmission companies that have fully transmission service because they no affiliated transmission provider for integrated transmission and distribution longer provide service under state transmission, the transmission provider functions, those costs could be approved cost-of-service regulation; (2) would be required to post the considerable. On the other hand, the the current exemption is a loophole that organizational charts and job affiliate relationship between the permits the LDC to get preferential descriptions for the energy affiliates, transmission provider and its affiliated access to information, which harms LDC gives the transmission provider the which the commenters argue, would be competition; and (3) the LDC exemption burdensome. Although these purchases financial incentive to share information permits pipelines to circumvent the with the affiliated LDC, and the can have an impact on the energy standards of conduct by using the LDC markets, nonetheless, there is little loophole in the current regulations as a conduit for sharing information permits it to do so. As a result, the potential for competitive harm if the where they are solely engaged in on- definition of energy affiliates is clarified affiliated LDC has an unfair advantage system sales. over unaffiliated sellers. Elimination of to exclude any affiliate of the Four states, Indiana, Pennsylvania, transmission provider that is solely the loophole in the current regulations Utah and Wyoming, and the City of New would level the playing field for all purchasing power or natural gas for its Orleans opposed applying the standards sellers and shippers, ensuring a own consumption and is not using an of conduct to a transmission providers’ competitive marketplace. Therefore, the affiliated transmission provider for relationship with its affiliated LDC definition of energy affiliates in the final transmission. because section 1 of the NGA makes rule should require a transmission Proposed regulatory text: The production, gathering, distribution and provider to treat affiliated LDCs as proposed revisions to section 358.3(d) intrastate transportation subject to energy affiliates. would read as follows: regulation by the states. Staff also recommends that the (d)(i) Energy Affiliate means an Thirty-four commenters, primarily definition of energy affiliate include affiliate of a transmission provider that natural gas pipelines and affiliated producers, gatherers and processors. (1) engages in or is involved in marketers, opposed applying the Whether a producer or gatherer is transmission transactions in U.S. energy standards of conduct to a transmission making an on-system sale or an off- or transmission markets; or (2) manages provider’s relationship with its affiliated system sale, it is still competing for LDCs. They argued that: (1) There is no or controls transmission capacity of a access to the interstate transmission evidence or market analysis to support transmission provider in U.S. energy or system. Nothing in the language of the eliminating the exemption granted transmission markets; or (3) buys, sells, NGA distinguishes between under Order No. 497; (2) to require such trades or administers natural gas or transmission used for on-system sales separation would cause unnecessary electric energy in U.S. energy or versus off-system sales. The duplication of employees and gas transmission markets; or (4) engages in Commission’s focus is to ensure control facilities, resulting in additional financial transactions relating to the sale comparability of service. To retain a costs to the consumers; (3) the or transmission of natural gas or electric loophole that permits the transmission Commission does not have jurisdiction energy in U.S. energy or transmission provider to share employees with its over producers, gatherers or LDCs; and markets. energy affiliates or give its producers or (4) limits on communications with LDCs (ii) The definition of energy affiliate would impair reliability, and the 9 See Section 4 of the Natural Gas Act, which excludes (1) other affiliated regulated ‘‘emergency’’ exception is insufficient. states that with respect to the sale or transportation transmission providers; and (2) holding The argument that the Commission of natural gas, no natural gas company shall make or service companies that do not engage or grant an undue preference or subject any person cannot govern the relationship between to an undue preference or disadvantage or maintain in or are involved in transmission any unreasonable difference in rates, charges, transactions in U.S. energy markets. 8 18 C.F.R. § 161.2(c) (2001). service or facilities. 15 U.S.C. § 717c (2000).
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gatherers preferential information is bundled sales function. 11 This would contend that: (1) The Commission is inconsistent with the Commission’s goal eliminate the exemption of Order No. exceeding its statutory authority under of non-discriminatory interstate 889, which permitted the electric section 201 of the FPA, which gives transmission service. transmission provider to use the same states regulatory authority over facilities With respect to producers, gatherers, employees for its interstate transmission used in distribution, intrastate and processors, the commenters voiced business and its bundled retail sales and commerce or retail consumption (state practical concerns about how the distribution business. preemption); (2) separation of Fourteen commenters, including the employees engaged in the bundled sales proposed standards of conduct would Cooperatives, Calpine, ELCON, EPSA, function for retail native load from impact communications amongst these NEMA, Transmission Access Policy interstate transmission employees entities and with their affiliated Group and Transmission Group, four would cause expensive duplication of transmission providers. INGAA seemed state agencies and the FTC supported staff and facilities, without any to assume that the NOPR proposed to the NOPR’s proposal to include retail countervailing competitive benefit restrict communications between function employees within the (estimates of the one-time costs range producers, gatherers, and processors. definition of energy affiliate. They from $75,000—$1,000,000); (3) the This is not the case. The NOPR does not argued that the Commission can assert transmission provider may not be able propose to restrict communications jurisdiction over the organizational to maintain reliability and would have among producers, gatherers and structure of the jurisdictional public difficulty in coordinating generation processors. However, the NOPR was utility and the dissemination of dispatch; and (4) there are no silent on what types of day-to-day information acquired through the competitive concerns because retail communications would be permitted operation of jurisdictional assets. service is state mandated. NASUCA between the transmission providers and Generally, they argue that: (1) The argues that structural separation may their affiliated producers, gatherers and Commission must ensure that not be necessary to accomplish the processors. As discussed later, affiliates transmission service is not unduly Commission’s goal that all market should be able to share certain discriminatory; (2) bundled retail sales participants should have access to the operational information crucial to the represent a large percentage of utilities’ same information. NASUCA proposes reliable operation of the transmission sales and the utilities have little the required posting of any information system. This would alleviate many of incentive to promote comparability, to relating to transmission prices or the commenters’ concerns about how improve OASIS or to provide equal availability provided to retail sales the transmission provider will be able to quality service; and (3) the distinction employees by transmission employees do business with its affiliated gatherers, between wholesale and retail is artificial should accomplish the Commission’s producers and processors. and the conditions in the retail market goal without requiring the expense of Several parties voiced concern about impact the wholesale market. Several requiring a separation of functions. the shared functions and employees on commenters, including Dynegy, argue Several commenters, APPA, Duke, the upstream and downstream systems, that discriminatory behavior that harms Bowater and Oklahoma Gas and particularly for off-shore facilities which competition is taking place. For Electric, proposed that transmission are constructed and operated as example, Dynegy contends that some providers treat employees engaged in a integrated systems. The approach under utilities block ATC across valuable bundled sales function for retail native the existing regulations has been to interconnections in the name of service load as energy affiliates only where they to native load, which has the effect of evaluate particular circumstances for do business in states that have enacted blocking other purchases within the each transmission provider’s system, retail competition. They argue that in utility’s system. Commenters also assert and where appropriate, permit the states where there are no competitors that when a utility’s merchant function sharing of certain field-type personnel seeking transmission access to serve reserves access to a valuable import where there is little potential to give an retail customers, there can be no harm path, purportedly for native load, only affiliate an undue preference or to harm to the customer. North Carolina Utilities to simultaneously export the utility’s the competitive market. 10 However, the Commission argues that in states where own generation from the same control Commission has had considerable there is no retail competition, such as area in amounts equal to or greater than experience in determining which types North Carolina, the NOPR will not have the imports this results in an undue of field-type personnel could be shared, the effect of promoting competition preference. The FTC strongly endorses and could provide additional guidance because there is none. However, a piece- eliminating the native load exemption in the final rule or on a case-by-case meal rule, that excludes transmission from the current regulations, contending basis in implementing the final rule. providers in states that have not enacted that the retail merchant function should retail competition would be difficult to B. Should the Definition of Marketing, not have preferential access to implement because many transmission Sales or Brokering Include the Bundled information or to the interstate providers and their retail merchant Sales Function for Retail Native Load transmission grid. operate in multiple states. Thirty-six commenters, including EEI, The NOPR’s proposal is consistent In proposed section 358.3(e), the NASUCA, NARUC, many electric with the Supreme Court’s recent definition of ‘‘marketing, sales or transmission companies and ten state decision concerning Order No. 888. 12 brokering’’ includes an electric agencies, opposed treating retail The Supreme Court held that the plain transmission provider’s sales unit, function employees as a marketing language of section 201(b) of the Federal including those employees that engage function. For the most part, they Power Act gives the Commission in wholesale merchant sales or bundled jurisdiction over wholesale sales of retail sales. As a result, a transmission 11 Section 284.286 of the Commission’s electric energy and transmission in provider would have to separate its regulations, 18 C.F.R. § 284.286 (2001) currently interstate commerce. The Court further interstate transmission function from its requires an interstate pipeline to separate its interstate transmission function from its unbundled sales service, essentially treating the pipeline’s sales 12 New York et al. v. FERC et al., 70 U.S.L.W. 10 Order No. 497–F at 62,157 and Tennessee Gas business as the equivalent of an affiliated marketing 4151, 4166; 122 S.Ct. 1012; 2001 U.S. Lexis 1380 Pipeline Company, 55 FERC ¶61,285 (1990). company. (March 5, 2002).
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stated that no statutory language limits Commission has permitted transmission sweep into the definition of an energy the Commission’s transmission providers to share non-transmission affiliate, such as affiliated transmission jurisdiction to the wholesale market. functions, such as administrative, providers, holding companies, service The NOPR proposed rules for accounting, human resources, with their companies and foreign affiliates. As a transmission within the Commission’s marketing affiliates or merchant result, they argued that the costs jurisdiction and did not assert functions. This paper recommends that associated with requiring the jurisdiction over the bundled sales the Commission continue to permit the transmission function to operate function. The Commission’s focus and sharing of non-transmission functions independently of the other energy the proposed regulations relate to the between the transmission business and affiliates ranged from $75,000 to jurisdictional interstate transmission its energy affiliates under the proposed $200,000,000, depending on the size of provider and how it operates its regulations. the transmission provider. interstate transmission system. On the other hand, when a It appears that the commenters’ Requiring the transmission provider to transmission provider shares employees projected costs of imposing the treat its bundled retail sales business as and information with its retail sales independent functioning requirement an energy affiliate is a critical step to function, there is an inherent incentive reflect the ‘‘worst-case scenario,’’ that is, full comparability. for the transmission provider to favor its if the Commission were to require a The question facing the Commission native load. As a result, the native load complete separation of affiliated is whether the cost of separating the is shielded from external competition transmission providers, holding retail sales function from the and the market is not competitive. EPSA companies and other energy affiliates, transmission function outweighs the highlights the potential $32 billion such as electric retail sales, LDCs etc., benefit of eliminating the potential benefit of a well-functioning as well as prohibiting the sharing of anticompetitive effects of a transmission competitive market (citing a Department certain non-operating functions. owner’s native load preference. of Energy 1999 study.) More recently, If the Commission narrows the Staff has observed that many the FTC studied competition and definition of the term energy affiliate as transmission providers have already consumer protection, focused on retail discussed earlier, then the structured their corporate organization competition, and found that effective implementation costs would not be as so that the retail sales unit is a part of wholesale and retail competition will large as those suggested by the the wholesale merchant function. For mutually reinforce each other, thus commenters. Therefore, the majority of those companies, there would be no cost combining to bring benefits to cost estimates submitted by the to comply. However, for the customers.13 By requiring the comments do not provide a useful basis transmission providers that currently transmission provider to give all for assessing the costs of expanding the independent functioning requirement to share transmission function employees transmission customers, wholesale or with employees engaged in bundled the transmission provider’s relationship retail, affiliated or unaffiliated, the same retail sales, there will be a cost of with a broader group of affiliates. access to transmission information, the separating those employees and However, some companies did break Commission is fulfilling its obligation to functions. These transmission down specific costs associated with ensure non-discriminatory transmission providers, that typically use the shared establishing separate computer and service. Moreover, requiring the employees for customer service, load telephone systems and a separate office transmission provider to treat its retail forecasting and scheduling purposes, building for an affiliated LDC. For sales function as a marketing affiliate argue that they would incur significant example, National Fuel, which is a would level the playing field for all costs to separate the transmission pipeline whose operations are wholly transmission customers, and would function from the retail sales function integrated with its LDC, states it would with no commensurate benefit. promote a competitive marketplace. cost $10.7 million in the first year to As Duke recognized, the magnitude of C. The Independent Functioning duplicate these facilities. these increased costs depends, in part, Requirement Sharing of non-transmission on how the separation is implemented functions: Forty-six commenters, and whether certain specific functions, The NOPR, like the current gas and including gas pipelines, electric like administrative or support functions, electric standards of conduct, proposes transmission providers, AGA, EEI, and certain information, like specific to require the transmission business to INGAA, NGSA and Industrials, were transaction or reliability information, function independently. Although the very concerned because the NOPR was can be shared between the transmission current standards of conduct require the silent on whether the Commission function and the retail sales function. transmission business to function would implement the independent Therefore, many electric transmission independently of marketing or functioning requirement consistent with providers articulated the types of costs wholesale merchant functions, the the case law that has developed under associated with separating the retail proposed standards of conduct require the current standards of conduct. sales function from the transmission the transmission business to function Historically, the Commission has function, for example, hiring additional independently of any energy affiliates. recognized that different transmission employees, leasing additional space, Costs of compliance: Gas pipelines providers are faced with different purchasing additional computers, and electric transmission utilities were practical circumstances in reviewing the software, increased administrative and almost unanimous in their opposition to appropriate degree of separation legal costs. Only a few provided details the proposed broad definition of energy between the transmission function and quantifying the costs associated with affiliates because they construed it to the marketing affiliate or wholesale separating the retail sales function, include affiliated businesses or merchant function. Under the current presumably because of the uncertainty components of their business that the gas and electric current standards of whether the Commission would Commission probably did not intend to conduct, the Commission has permitted continue to permit the sharing of some the transmission function to share with 13 FTC Staff Report: Competition and Consumer support or administrative employees. As Protection Perspectives on Electric Power its marketing affiliate or wholesale discussed below, under the current gas Regulatory Reform, Focus on Retail Competition merchant function non-operating and electric standards of conduct, the (Sep 2001) http://www.ftc.gov/reports/index. officers or directors, and personnel
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performing various non-operating did not conduct comparable reviews of nonaffiliated shipper (this is considered functions.14 The Commission’s how small electric transmission confidential information).20 The gas approach has been to balance its providers implemented the independent industry commonly refers to this as the regulatory goals with the practicalities functioning requirement of the electric ‘‘automatic imputation rule’’ because of operating a transmission system, large standards of conduct because the the Commission’s policy is that when an or small. Commission exempted many of the employee that performs functions for For large gas and electric transmission small electric transmission providers the pipeline and its marketing affiliate providers, the Commission has from the electric standards of conduct.18 receives confidential shipper permitted the sharing of various non- The independent functioning information, the information is transmission functions such as legal, requirement is a central component of automatically divulged or imputed to accounting, human resources, travel and the standards of conduct, limiting the the marketing affiliate since the information technology.15 By permitting ability of the transmission provider to employee is also working for the such sharing of non-operating use its market power to preferentially marketing affiliate. In Tenneco, the employees, the Commission has allowed benefit an energy affiliate. Nonetheless, Court of Appeals endorsed this the transmission provider to realize the it is necessary to recognize the approach when it found that the benefits of cost savings through practicalities of operating a transmission relevant question is not whether a integration where the shared employees system, and therefore staff recommends shared employee who receives critical do not have duties or responsibilities that the Commission continue to permit information will disclose it to the relating to transmission and could not the sharing of non-transmission affiliate, but whether that shared give a marketing affiliate an undue functions between the transmission employee will in fact receive such preference. In these circumstances, the business and its energy affiliates under information in the first place, or sharing of transmission business the proposed regulations. alternatively, how the pipeline intends employees with marketing affiliate to keep information supplied by employees was not considered to be D. Information Disclosure Requirements/Prohibitions nonaffiliated shippers from reaching a likely to be harmful to shippers, shared employee.21 consumers or competition in the The standards of conduct prohibitions Over the past 15 years, several natural transmission market. The Commission on information disclosure are intended gas pipelines have urged the has also recognized that under normal to prevent a transmission provider from Commission to adopt different circumstances, highly placed granting its energy affiliate an undue approaches: (1) apply the ‘‘automatic employees, such as officers or directors, preference over non-affiliates by sharing imputation rule’’ only to shared are not involved in day-to-day duties confidential or transmission operating employees; and (2) adopt a and responsibilities, and can be shared information. The existing gas and ‘‘no-conduit rule.’’ 22 However, the between a transmission provider and its electric standards of conduct concerning Commission has consistently applied marketing affiliate so long as these the permissible flow of information the ‘‘automatic imputation rule’’ to all individuals comply with the between affiliates are quite different, so shared employees, whether they information disclosure prohibitions.16 as a result the positions of the perform operating and non-operating For small gas transmission providers, commenters with respect to the NOPR’s the Commission looked, on a case-by- functions, and specifically rejected a proposals depended on the industry ‘‘no-conduit rule.’’ 23 case basis, at the size of companies, the upon which they were focused. number of employees and level of In contrast, under the current electric interest in transportation on the 1. Current Policy Differences on standards of conduct, which contain pipeline, and, where appropriate, Information Disclosure Under the Gas much broader information disclosure determined that companies had and Electric Standards of Conduct prohibitions, the Commission has permitted shared non-operating separated to the maximum extent Under the current gas standards of employees to receive confidential practicable even if they did share conduct, when a natural gas pipeline shipper information as long as the transmission employees with their company shares transportation 17 shared employee did not act as a marketing affiliates. The Commission information with its marketing affiliate, conduit for sharing the information with the pipeline must contemporaneously 14 The Commission’s current policy is that non- wholesale merchant function share that information with non- 24 operating functions include those not engaged in 19 employees. In implementing Order day-to-day marketing, sales, transportation or other affiliates. This requirement is gas-related operations, including clerical and designed to prevent a transmission 20 Standard E, 18 C.F.R. § 161.3(e) (2001), states secretarial staff, general office accounting staff and provider from giving its marketing that a pipeline may not disclose to its marketing some field personnel. In Order No. 497–F, the affiliate undue preferences over its affiliate any information the pipeline receives from Commission stated that field personnel, such as a nonaffiliated shipper or potential nonaffiliated those who perform manual work (dig trenches) or unaffiliated customers through the shipper. purely technical duties (operate and maintain the exchange of insider transmission 21 Tenneco Gas v. FERC (affirmed in part and pipeline’s equipment) would not be considered information. operating employees. remanded in part), 969 F.2d 1187 (D.C. Cir. 1992). In addition, the current gas standards 22 15 Under Standard G, 18 C.F.R. § 161.3(g)(2001), Under a ‘‘no-conduit rule,’’ a shared non- to the maximum extent practicable a pipeline’s of conduct prohibit a pipeline from operating employee could receive confidential operating employees and the operating employees sharing with its marketing affiliate any information as long as the shared employee did not of its marketing affiliate must function information the pipeline receives from a act as a conduit for sharing the information with the independently of each other. In Order No. 497–E, marketing affiliate or wholesale merchant function. the Commission defined operating employees as, in nonaffiliated shipper or potential 23 See Order No. 497–E and F, and Amoco part, those that are engaged in the day-to-day duties Production Co. and Amoco Energy Trading Co. v. and responsibility for planning, directing, 18 Black Creek Hydro, Inc., 77 FERC ¶ 61,232 Natural Gas Pipeline Company of America, 83 FERC organizing or carrying out gas-related operations, (1996). ¶ 61,197 at 61,849 (1998). including gas transportation, gas sales or gas 19 Standard F, 18 C.F.R. § 161.3(f) (2001), states 24 Under the gas standards of conduct, the marketing activities. Order No. 497–E at 30,996. that to the extent a pipeline provides to a marketing contemporaneous disclosure requirement only 16 Order No. 497–E at 30,996. affiliate information related to transportation of applies to transportation information, while under 17 See e.g., Ringwood Gathering Co., 55 FERC natural gas, it must provide that information the electric standards of conduct, the ¶ 61,300 (1991) and Caprock Pipeline Company, et contemporaneously to all potential shippers, contemporaneous disclosure requirements apply to al., 58 FERC ¶ 61,141 (1992). affiliated and non-affiliated on its system. transmission and market information and prohibit
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No. 889, the Commission justified the services to both the transmission 3. Exceptions Under the Current Gas different rule because the electric provider and its energy affiliates, Staff is Standards of Conduct standards of conduct provide a stricter concerned that there is an opportunity Under current policy, a transmission separation of functions requirement for transmission information to be used provider is not required to than the pipeline standards.25 When the for other functions. contemporaneously disclose to all Commission reviewed the standards of The issue is, once the shared shippers information relating to a conduct for electric transmission employee learns confidential shipper marketing affiliate’s specific request for providers, the Commission adopted the information, can he or she use that transportation service. The NOPR did ‘‘no-conduit’’ rule, rather than applying 26 information to give an energy affiliate an not specifically address this issue. the ‘‘automatic imputation rule.’’ undue preference? Under the no- The NOPR proposed to prohibit the Similarly, in numerous cases conduit rule, the shared non-operating transmission provider from disclosing implementing the existing gas standards employee could receive the information, transmission information about of conduct, the Commission has but would be prohibited from sharing transmission system operations, or permitted a non-affiliate to voluntarily the information with an energy affiliate. information acquired from non-affiliated consent, in writing, to allow the gas Applying the no-conduit rule might customers, to their marketing and sales pipeline to share the non-affiliate’s allow transmission providers to share employees and the energy affiliates’ information with the marketing employees through non-public more non-operating employees with its affiliate.27 The NOPR did not communications. The NOPR, however, energy affiliates without violating the specifically address this policy. was silent on how the information information disclosure prohibitions. Virtually every segment of the gas prohibitions would be applied to shared On the other hand, the automatic industry requested clarification whether employees, that is, whether the imputation rule recognizes the reality the Commission would continue the Commission would adopt the that an individual cannot segment his or ‘‘specific-transaction exception’’ and the ‘‘automatic imputation rule’’ from the her brain, and once an individual learns voluntary disclosure provision. gas standards of conduct or the ‘‘no- information, he or she is likely to utilize In several cases implementing the conduit rule’’ from the electric it. The automatic imputation rule is a existing gas standards of conduct, the standards of conduct. Many clearer standard and easier to Commission permitted transportation commenters, from both the gas and implement because it eliminates the function employees to buy and sell gas electric industry, request, without much opportunity for improperly sharing for operational reasons, including to explanation, that the Commission codify information. Staff would recommend balance fuel usage, for storage the ‘‘no-conduit rule’’ and apply to it all that the Commission adopt the operations, to effectuate cashouts and transmission providers. automatic imputation rule under the deplete or replenish line pack.28 Several Under the proposed regulations, staff proposed regulations. gas pipelines, as well as INGAA, note expects transmission providers would that the NOPR does not appear to retain 2. Sharing of Operational/Reliability continue to share non-operating the historical exclusion for such Information employees, including officers and activities and urge the Commission to directors with their energy affiliates. In Many commenters from virtually all retain this exception. the past, the Commission’s focus has segments of the gas and electric industry These exceptions, which impact been how to keep the information argue that the separation of functions practical operations of the transmission supplied by non-affiliated shippers from and the information disclosure system, are important and merit reaching the shared non-operating prohibitions required by the NOPR will retention. Therefore, these exclusions employees. Some non-operating prohibit a transmission provider from should be continued in the proposed functions, for example, Human communicating crucial operational regulations. Resources or Travel, clearly have little information with its retail sales Proposed regulatory text: The revision or no access to transmission-related or function, generation function, producer, to proposed section 358.5(b) would add market information and application of gatherer or LDC. They argue that three new sections, sections 358.5(b)(3), the information disclosure prohibitions prohibiting certain of these 358.5(b)(5) and (6), and renumber has little practical impact on those communications will endanger the section 358.5(b)(3) to 358.5(b)(4) as operations. However, where shared reliability of both the gas and electric follows: employees have regular access to transmission systems. Several (3) An employee of a transmission transmission-related information, such commenters argue that the Commission provider and a transmission provider as billing or accounting, and provide should adopt the approach taken when cannot use any affiliate or employee of implementing Order No. 889, where the an affiliate as a conduit for sharing off-OASIS communications. See 18 C.F.R. §§ 37.4(4) Commission permitted transmission information with an energy affiliate that and 161.3(f) (2001). providers to share certain types of is prohibited by sections 358.5(b)(1) and 25 Under the gas standards of conduct, to the maximum extent practicable, a pipeline’s operating operational information with its (2). employees and the operating employees must generation function and wholesale (4) If an employee of the transmission function independent of each other. See 18 C.F.R. merchant function. provider discloses information in a § 161.3(g) (2001). In contrast, the employees of the manner contrary to the requirements of electric transmission provider engaged in Staff recommends that transmission transmission system operations must function providers and their energy affiliates be sections 358.5(b)(1) and (2), the independently of the employees engaged in permitted to share crucial operational transmission provider must wholesale merchant functions, except for information necessary to maintain the immediately post such information on emergency circumstances affecting system the OASIS or Internet website. reliability. See 18 C.F.R. § 37.4(a)(1) (2001). The key reliability of the transmission system. difference being the flexibility under the term One option for resolving this concern ‘‘maximum extent practicable,’’ which permits, in would be to promulgate rules governing 27 See e.g., Southern Natural Gas Company, 70 certain situations, the sharing of operating FERC ¶ 61,348 (1995). employees. the specific types of information that a 28 See e.g., East Tennessee Natural Gas Co., 63 26 Allegheny Power Service Corp., et. al., 84 FERC transmission provider could share with FERC ¶ 61,578, order on rehearing 64 FERC ¶ 61,316 at 62,425 (1998). its energy affiliates. ¶ 61,159 (1993).
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(5) A nonaffiliated transmission transmission provider to function discounting, pipeline-to-pipeline customer may voluntarily consent, in independently of its energy affiliates. competition and alternative fuel sources writing, to allow the transmission Regarding the ability to update are frequent. They argue that this provider to share the non-affiliate employee information, Staff has proposal would put a damper on transmission customer’s transmission observed that some companies link their discounting and the posting information with an energy affiliate. employee or human resource databases requirement is inconsistent with (6) A transmission provider is not to the posted organizational charts and selective discounting for the gas required to contemporaneously disclose job descriptions, such that an automatic industry. Many expressed concern about to all transmission customers or download or update takes place each the vagueness of the word ‘‘offer’’ and potential transmission customers day. Therefore, requiring the changes to offered various definitions or variations information relating to an energy be posted within three days would for when the information should be affiliate’s specific request for appear reasonable. However, the posted. Several commenters, AGA, transmission service. commenters’ arguments, that it may be Dominion, Industrials and NISOURCE, difficult to post all changes within three recommended that discounts be posted E. Posting Organizational Charts and business days given the complexity of after they are executed. Job Descriptions some mergers or buy-outs, is also a The final rule will need to balance the Currently, natural gas pipelines and reasonable one. That does not, however, importance of equal and timely access electric utilities are required to post justify a delay of 10 to 30 business days. to discount information with the various organizational charts and job In balancing the minimal burden possibility that a new discount descriptions. The gas pipelines are associated with updating day-to-day requirement might put such a damper required to make changes to the employee information with the efforts on discounting, that transmission postings within three business days of a that would be needed to post capacity would remain unsold or put an change. The Commission has never completely new organizational charts interstate pipeline at a competitive addressed the frequency of changes to resulting from complex changes, such as disadvantage vis-a-vis non-jurisdictional be made under the electric standards of the sale, purchase or merger of a competition, e.g., intrastate pipelines. conduct. Commenters from the gas and company, it would be reasonable to Staff agrees that the term ‘‘offer’’ can be electric industry urge the Commission require the information to be updated interpreted in a variety of ways, and to reconsider this requirement. within seven business days from the recommends that the final rule provide date of the change. Although they are already complying additional clarification on the timing of with this requirement with respect to F. Posting Discounts at Time of Offer the posting in the final rule. However, their marketing affiliates, they argue that The NOPR proposed to require any the current requirement, under section there would be significantly more offer of a discount for any transmission 161.3(h)(2), to post information within information to post if the Commission service made by the transmission 24 hours of gas flow is too late to afford adopts a broad definition of the term provider to be announced to all an unaffiliated competitor the energy affiliate. Several urge that the potential customers solely by posting on opportunity to negotiate a comparable information be updated 10–30 days the OASIS or Internet. Although this deal in today’s fast-paced marketplace. from the date of the change, rather than language is consistent with the electric In balancing those competing concerns, the three days proposed by the NOPR. standards of conduct, it represents a Staff recommends that the final rule Commenters also argue that it may be change from the current gas standards of require the transmission provider to difficult to post all changes within three conduct, which require discount post the discount at the conclusion of business days given the complexity of information to be posted within 24 negotiations, when the discount offer is some mergers or buy-outs. hours of the time gas first flows under binding. Staff disagrees with the commenters a discounted transaction. The NOPR Proposed regulatory text: The position that there would be stated that posting discounts on the proposed revisions to section 358.5(d) significantly more information to post Internet is a simple, quicker way of would read as follows: with the broader definition of the term communicating discount information to (d) Discounts. Any offer of a discount energy affiliate. Under the NOPR, there all potential customers and reflects the for any transmission service made by are only two changes, which might Commission’s desire is to ensure that all the transmission provider must be cause a minimal additional burden: (1) potential customers have equal and posted on the OASIS or Internet website the transmission provider would have to timely access to discount information in contemporaneously with the time that identify all of its energy affiliates on the the fast-paced marketplace. the offer is contractually binding. The organizational charts in order to provide Commenters from the electric posting must include: the name of the a clear picture of the transmission industry were largely silent on this issue customer involved in the discount and provider’s relative position in the because they are already operating whether it is an affiliate or whether an corporate structure of the parent under these requirements. affiliate is involved in the transaction, company; and (2) a transmission A few commenters, APGA, Amoco/ the rate offered; the maximum rate; the provider would have to provide BP, CPUC and Reliant, offered time period for which the discount additional information concerning any unqualified support of this requirement. would apply; the quantity of power or employees it shares with its energy Twenty-six commenters, primarily from gas scheduled to be moved; the delivery affiliates. Most companies already the gas industry, INGAA, Ad Hoc points under the transaction; and any maintain organizational charts and Marketers, NGSA, EPSA, and conditions or requirements applicable to structural information, so there should Industrials, strongly opposed posting the discount. The posting must remain be little additional burden to post this. discounts at the time of the offer. The on the OASIS or Internet website for 60 With respect to posting information for commenters point out that discounting days from the date of posting. employees the transmission provider is fundamentally different between the List of Commenters shares with its energy affiliate, such gas and electric industry. In the gas posting should be minimal because the industry, pipelines face a competitive AEC Storage and HUB Service INC. standards of conduct require the transportation market, where Alabama Electric Cooperative, Inc.
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Alabama Municipal Electric Authority Federal Trade Commission (FTC) Orlando Utilities Commission (AMEA) Fertilizer Institute Pancanadian Energy Services Inc. Alcoa Power Generating Inc. First Electric Cooperative Corporation Piedmont Natural Gas Co. Allegheny Power—Monongahela Power Florida Pubic Service Commission Pinnacle West Companies Company, The Potomac Edison Green Mountain Power Corporation Portland Natural Gas Transmission Company and Gulf South Pipeline Company, LP System The West Penn Power Company Gulfstream Natural Gas System, L.L.C. PPL Companies Alliance Pipeline L.P. Idaho Public Utilities Process Gas Consumer Group American Electric Power System Independent Oil & Gas Association of Proliance Energy, LLC American Forest & Paper Association West Virginia (IOGA) Public Utilities Commission of the State American Gas Association (AGA) Illinois Commerce Commission of California ‘‘CPUC’’ American Public Gas Association Interstate Natural Gas Association of Public Service Company (APGA) America (INGAA) PSEG Companies American Public Power Association Independent Petroleum Association of Public Utilities Commission of Ohio & (APPA) America and Cooperating Association Michigan Amoco Production Company and BP (IPAA) Puget Sound Energy Energy Company (Amoco/BP) The Industrials—The Process Gas Questar Market Resource, INC. Arkansas Public Service Commission Consumers Group, The American Questar Pipeline Company, Questar Gas Atlanta Gas Light Company, Virginia Forest & Paper Association, The Company, and The Questar Regulated Natural gas, Inc. and Chattanooga American Iron and Steel Institute, The Services Company Company Georgia Industrial Group, The Reliant Resources, Inc. Atmos Energy Corporation Industrial Gas Users of Florida, The Rural Utilities Service, United States Avista Corporation (Avista) Florida Industrial Gas Users, and Department of Agriculture Bangor Hydro—Electric United States Gypsum Company. SCANA Companies—South Carolina Basin Electric Power Cooperative Industrial Coalitions on Standards of Electric & Gas Company, Public Bonneville Power Administration (BPA) Conducts for Transmission Providers Service Company, of North Carolina, Bowater Inc. (Bowater) Keyspan Corporation South Carolina Pipeline Corporation, California Dairy Coalition Kinder Morgan Pipelines SCG Pipeline Inc., SCANA Energy Calpine Corporation (Calpine) LG& E Energy Corp. Marketing, INC. and SCANA Services, Canadian Association of Petroleum The Long Island Lighting Company Inc.. Producers and the Alberta Department (filed one day out of time) Sempra Energy of Energy Maritimes & Northeast Pipeline, L.L.C. Shell Offshore Inc. Carolina Power & Light Company and Maryland Public Service Commission Shell Gas Transmission, LLC Florida Power Corporation Member System Southern California Edison Company Cinergy Services, Inc. (Cinergy) Midwest Independent Transmission Southern Company Services, Inc. City Council of the City New Orleans, System Southwest Transmission Cooperative, Louisiana MIGC, Inc. Inc. ( ‘‘SWTC’’) CMS Energy Corporation (CMS) Minnesota Department of Commerce Southwest Gas Corporation Colorado Spring Utilities (CSU) Mississippi Public Service Commission Superior Natural Gas Corporation and Connexus Energy Mirant Walter Oil & Gas Corporation Conectiv Montana-Dakota Utilities Co. TECO Energy, Inc. The Cooperatives—The Alabama Montana Power Company Transmission Access Policy Study Electric Cooperative, The Arkansas National Association of State Utility Group (‘‘TAPS’’) Electric Cooperative Corporation and Consumer Advocate Transmission Group—Northern Natural The Seminole Electric Cooperative National Energy Marketer Association Gas Company, Transwestern Pipeline Dairyland Power Cooperative (NEMA) Company, Florida Gas Transmission Discovery Producer Services LLC and National Propane Gas Association Company, Northern Border Pipeline Discovery and Discovery Gas National Fuel Gas Distribution Company, Midwestern Gas Transmission LLC Corporation Transmission Company, and Portland Dominion Resources, Inc. (Dominion) National Grid USA General Electric. DTE Energy Company National Rural Electric Cooperative Unaffiliated Marketers—The Midwest Duke Energy Corporation (Duke Energy) Association United Energy LLC, The Wasatch Dynegy Inc. (Dynegy) Natural Gas Supply Association (NGSA) Energy, LLC and The Public Alliance East Texas Electric Cooperative, Inc. and New Power Company for Community Energy. Wolverine Power Supply Cooperative, New York Power Authority (NYPA) USG Pipeline Company, B-R Pipeline Inc. New York Independent System Company , and The United States Edison Electric Institute (EEI) Operator, Inc. Gypsum Company Electric Power Supply Association Nevada Independent Energy Coalition Utah Associated Municipal Power (EPSA) Niagara Mohawk Power Corporation System Electricity Consumers Resource NICOR Gas Utah Division of Public Utilities El Paso Corporation Nisource Inc. Utilicorp United Inc. El Paso Energy Partners, LP North Carolina Utilities Commission Vector Pipeline L.P. Empire District Electric Company Northeast Utilities Service Company Vermont Department of Public Service Enbridge Inc. Northeast Independent Transmission Washington Gas Light Company and Energy East Companies and Rochester Company Proponents Hampshire Storage Company Gas & Electric Northwest Natural Gas Company Washington Utilities and Transportation Entergy Services, Inc. (Entergy) Oktex Pipeline Company Commission Equitable Resources, Inc. Oklahoma Corporation Commission Wells Rural Electric Company Exelon Corporation Oklahoma Gas & Electric Company The Williams Companies
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Williston Basin Interstate Pipeline 2002–DF2P–FFFFF. All electronic conditionally exempt small quantity Company comments must be submitted as an generator (CESQG) hazardous waste on- Wisconsin Electric Power Company and ASCII file avoiding the use of special site have ceased that practice and that Wisconsin Gas Company characters and any form of encryption. commercial off-site industrial waste Wisconsin Public Service Corporation Commentors should not submit units are operating with stringent and The Upper Peninsula Power electronically any confidential business environmental controls in place. Company information (CBI). An original and two Therefore, entities that potentially will [FR Doc. 02–10746 Filed 4–30–02; 8:45 am] copies of CBI must be submitted under be affected by this action are limited to BILLING CODE 6717–01–P separate cover to: RCRA CBI Document those that dispose of CESQG hazardous Control Officer, Office of Solid Waste wastes in construction and demolition (5305W), U.S. EPA, Ariel Rios Building, (C&D) waste landfills. Title: Criteria for Classification of ENVIRONMENTAL PROTECTION 1200 Pennsylvania Avenue, NW, Solid Waste Disposal Facilities and AGENCY Washington, DC 20460–0002. Public comments and supporting Practices, Recordkeeping and Reporting [FRL–7204–4] materials are available for viewing in requirements—40 CFR Part 257 Subpart the RCRA Information Center (RIC), B. Agency Information Collection located at Crystal Gateway I, First Floor, OMB No.: 2050–0154. Activities: Proposed Collection; 1235 Jefferson Davis Highway, EPA ICR No.: 1745.03. Comment Request. Criteria for Arlington, VA. The RIC is open from 9 Current expiration date: September Classification of Solid Waste Disposal a.m. to 4 p.m., Monday through Friday, 30, 1999. Facilities and Practices, excluding Federal holidays. To review Abstract: In order to effectively Recordkeeping and Reporting docket materials, it is recommended implement and enforce final changes to Requirements (Renewal) that the public make an appointment by 40 CFR Part 257—Subpart B on a State level, owners/operators of construction AGENCY: calling 703–603–9230. The public may Environmental Protection and demolition waste landfills that Agency (EPA). copy a maximum of 100 pages from any regulatory docket at no charge. receive CESQG hazardous wastes will ACTION: Notice. Additional copies cost $0.15 per page. have to comply with the final reporting SUMMARY: In compliance with the The index and the supporting material and recordkeeping requirements. An Paperwork Reduction Act (44 U.S.C. is available electronically. The ICR is agency may not conduct or sponsor, and 3501 et seq.), this document announces available on the Internet at http:// a person is not required to respond to, that EPA is planning to submit the www.epa.gov/epaoswer/hazwaste/sqg/ a collection of information unless it following continuing Information index.htm. displays a currently valid OMB control Collection Request (ICR) to the Office of The official record for this action will number. The OMB control number for Management and Budget (OMB): be kept in paper form. Accordingly, EPA EPA’s regulations are listed in 40 CFR Criteria for Classification of Solid Waste will transfer all comments received part 9 and 48 CFR chapter 15. This Disposal Facilities and Practices, electronically into paper form and place continuing ICR documents the Recordkeeping and Reporting them in the official record, which will recordkeeping and reporting burdens Requirements, ICR #1745.03, OMB No. also include all comments submitted associated with the location and 2050–0154, current expiration date is directly in writing. ground-water monitoring provisions September 30, 1999. Before submitting EPA responses to comments, whether contained in 40 CFR Part 257—Subpart the ICR to OMB for review and the comments are written or electronic, B. approval, EPA is soliciting comments on will be in a notice in the Federal The EPA would like to solicit specific aspects of the proposed Register. EPA will not immediately comments to: (i) Evaluate whether the proposed information collection described below. reply to commentors electronically other than to seek clarification of collection of information is necessary DATES: Comments must be submitted on for the proper performance of the or before July 1, 2002. electronic comments that may be garbled in transmission or during functions of the agency, including ADDRESSES: Commentors must send an whether the information will have original and two copies of their conversion to paper form, as discussed above. practical utility; comments referencing docket number (ii) Evaluate the accuracy of the FOR FURTHER INFORMATION CONTACT: For F–2002–DF2P–FFFFF to: (1) If using agency’s estimate of the burden of the general information, contact the RCRA regular US Postal Service mail: RCRA proposed collection of information, Hotline at 800 424–9346 or TDD 800 Docket Information Center, Office of including the validity of the 553–7672 (hearing impaired). In the Solid Waste (5305G), U.S. methodology and assumptions used; Environmental Protection Agency Washington, DC, metropolitan area, call (iii) Enhance the quality, utility, and Headquarters (EPA, HQ), Ariel Rios 703 412–9810 or TDD 703 412–3323. the clarity of the information to be Building, 1200 Pennsylvania Avenue, For more detailed information on collected; and NW, Washington, DC 20460–0002, or if specific aspects of this rulemaking (iv) Minimize the burden of the using special delivery, such as overnight contact Paul Cassidy, EPA, Office of collection of information on those who express service: RCRA Docket Solid Waste (5306W), Industrial & are to respond, including through the Information Center (RIC), Crystal Extractive Waste Branch, Ariel Rios use of appropriate automated electronic, Gateway One, 1235 Jefferson Davis Building, 1200 Pennsylvania Avenue, mechanical, or other technological Highway, First Floor, Arlington, VA NW, Washington, DC 20460, phone 703 collection techniques of other forms of 22202. Commentors are encouraged to 308–7281, e-mail address: information technology, e.g., permitting submit their comments electronically [email protected]. electronic submission of responses. through the Internet to: rcra- SUPPLEMENTARY INFORMATION: Burden Statement: The current [email protected]. Comments in Affected entities: EPA assumes that annual burden to respondents for electronic format should also be industrial waste units that previously complying with the information identified by the docket number F– co-disposed non-hazardous wastes and collection requirements of Part 257—
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Subpart B Criteria is approximately the applicability of this action to a IV. Existing Stocks Provisions 11,000 hours per year, with a current particular entity, consult the person 1. Distribution or sale of products by annual cost of $393,000. The current listed under FOR FURTHER INFORMATION the registrant bearing instructions for estimated number of respondents is 164 CONTACT. use on houseflies and non-agricultural with a current average annual burden of use sites. The distribution or sale of approximately 67 hours per respondent. II. How Can I Get Additional Information, Including Copies of this existing stocks by the registrant of any Burden means the total time, effort, or product listed in Table 1 or 2 that bears financial resources expended by persons Document and Other Related Documents? instructions for any use identified in to generate, maintain, retain, or disclose List 1, will not be lawful under FIFRA or provide information to or for a 1.Electronically. You may obtain 1 year after the effective date of the Federal agency. This includes the time electronic copies of this document, and cancellation order, except for the needed to review instructions; develop, certain other related documents that purposes of shipping such stocks for acquire, install, and utilize technology might be available electronically, from export consistent with section 17 of and systems for the purposes of the EPA Internet Home Page at http:// FIFRA or for proper disposal. collecting, validating, and verifying www.epa.gov. To access this document, 2. Distribution, sale, or use of information, processing and go to the Federal Register listings at products by persons other than the maintaining information, and disclosing http://www.epa.gov/fedrgstr. registrant bearing instructions for use on and providing information; adjust the 2. In person. The Agency has houseflies and non-agricultural use existing ways to comply with any sites. Persons other than the registrant previously applicable instructions and established an official record for this action under docket control number may continue to sell or distribute the requirements; train personnel to be able existing stocks of any product listed in to respond to a collection of OPP–2002–0023. The official record consists of the documents specifically Table 1 or 2 that bears instructions for information; search data sources; any of the uses identified in List 1 after complete and review the collection of referenced in this action, any public comments received during an applicable the effective date of the cancellation information; and transmit or otherwise order and may continue until such disclose the information. comment period, and other information related to this action, including any stocks are exhausted. The use of existing Dated: April 23, 2002. information claimed as Confidential stocks by persons other than the Matthew Hale, registrant of any product listed in Table Business Information (CBI). This official 1 or 2 that bears instructions for any Acting Office Director, Office of Solid Waste. record includes the documents that are uses identified in List 1 may continue [FR Doc. 02–10734 Filed 4–30–02; 8:45 am] physically located in the docket, as well until such stocks are exhausted. BILLING CODE 6560–50–P as the documents that are referenced in those documents. The public version of List of Subjects the official record does not include any ENVIRONMENTAL PROTECTION Environmental protection, Pesticides, information claimed as CBI. The public AGENCY Use cancellation order. version of the official record, which [OPP–2002–0023; FRL–6834–4] includes printed, paper versions of any Dated: April 23, 2002. electronic comments submitted during Lois A. Rossi, Dimethoate Product Cancellation an applicable comment period, is Director, Special Review and Reregistration Order and Label Amendment; available for inspection in the Public Division. Technical Correction Information and Records Integrity [FR Doc. 02–10735 Filed 4–30–02; 8:45 am] AGENCY: Environmental Protection Branch (PIRIB), Rm. 119, Crystal Mall BILLING CODE 6560–50–S Agency (EPA). #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., ACTION: Notice; technical correction. Monday through Friday, excluding legal ENVIRONMENTAL PROTECTION SUMMARY: EPA issued a cancellation holidays. The PIRIB telephone number AGENCY order in the Federal Register of March is (703) 305–5805. 13, 2002 eliminating the residential uses [OPP–2002–0020; FRL–6834–3] III. What Does this Technical for Dimethoate. This document is being Correction Do? Pesticide Product; Registration issued to correct the existing stocks Application; Extension of Comment provisions of this cancellation order. The cancellation order for uses of Period DATES: The cancellations became pesticide products containing effective March 13, 2002. Dimethoate on various commodities was AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: By published in the Federal Register on Agency (EPA). mail: Patrick Dobak, Special Review and March 13, 2002 (67 FR 11330) (FRL– ACTION: Notice. Reregistration Division (7508C), Office 6828–1). The existing stocks language in of Pesticide Programs, Environmental Unit IV is not consistent with the SUMMARY: This notice announces an Protection Agency, 1200 Pennsylvania proposed existing stocks provisions extension of the comment period Ave., NW., Washington, DC 20460; included in the January 10, 2002 regarding receipt of an application to telephone number: 703–308–8180; e- proposed Cancellation Order. The register a pesticide product containing a mail address: [email protected]. following Unit IV replaces Unit IV of the new active ingredient not included in SUPPLEMENTARY INFORMATION: Cancellation Order published on March any previously registered products 13, 2002. The replacement language is pursuant to the provisions of section I. Does this Action Apply to Me? consistent with the language in the 3(c)(4) of the Federal Insecticide, The Agency included in the January 10, 2002 proposed cancellation Fungicide, and Rodenticide Act cancellation order a list of those who order. No comments were received by (FIFRA), as amended. may be potentially affected by this the Agency. The revised existing stocks DATES: Written comments, identified by action. If you have questions regarding provisions are as follows: the docket control number OPP–
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30509B, must be received on or before document, on the Home Page select 3. Electronically. You may submit May 31, 2002. ‘‘Laws and Regulations,’’ ‘‘Regulations your comments electronically by e-mail ADDRESSES: Comments may be and Proposed Rules,’’ and then look up to: [email protected], or you can submitted by mail, electronically, or in the entry for this document under the submit a computer disk as described person. Please follow the detailed ‘‘Federal Register—Environmental above. Do not submit any information instructions for each method as Documents.’’ You can also go directly to electronically that you consider to be provided in Unit I. of the the Federal Register listings at http:// CBI. Avoid the use of special characters SUPPLEMENTARY INFORMATION. To ensure www.epa.gov/fedrgstr/. and any form of encryption. Electronic proper receipt by EPA, it is imperative 2. In person. The Agency has submissions will be accepted in that you identify docket control number established an official record for this WordPerfect 6.1/8.0 or ASCII file OPP–30509B in the subject line on the action under docket control number format. All comments in electronic form first page of your response. OPP–30509B. The official record must be identified by docket control FOR FURTHER INFORMATION CONTACT: consists of the documents specifically number OPP–30509B. Electronic Mike Mendelsohn, Regulatory Action referenced in this action, any public comments may also be filed online at Leader, Biopesticides and Pollution comments received during an applicable many Federal Depository Libraries. Prevention Division (7511C), comment period, and other information D. How Should I Handle CBI that I Want Environmental Protection Agency, 1200 related to this action, including any to Submit to the Agency? Pennsylvania Ave., NW., Washington, information claimed as Confidential DC 20460; telephone number: (703) Business Information (CBI). This official Do not submit any information 308–8715; e-mail address: record includes the documents that are electronically that you consider to be [email protected]. physically located in the docket, as well CBI. You may claim information that as the documents that are referenced in you submit to EPA in response to this SUPPLEMENTARY INFORMATION: those documents. The public version of document as CBI by marking any part or I. General Information the official record does not include any all of that information as CBI. Information so marked will not be A. Does this Action Apply to Me? information claimed as CBI. The public version of the official record, which disclosed except in accordance with You may be affected by this action if includes printed, paper versions of any procedures set forth in 40 CFR part 2. you are an agricultural producer, food electronic comments submitted during In addition to one complete version of manufacturer, or pesticide an applicable comment period, is the comment that includes any manufacturer. Potentially affected available for inspection in the Public information claimed as CBI, a copy of categories and entities may include, but Information and Records Integrity the comment that does not contain the are not limited to: Branch (PIRIB), Rm. 119, Crystal Mall information claimed as CBI must be #2, 1921 Jefferson Davis Hwy., submitted for inclusion in the public Examples of poten- version of the official record. Categories NAICS tially affected enti- Arlington, VA, from 8:30 a.m. to 4 p.m., codes ties Monday through Friday, excluding legal Information not marked confidential holidays. The PIRIB telephone number will be included in the public version Industry 111 Crop production is (703) 305–5805. of the official record without prior 112 Animal production notice. If you have any questions about 311 Food manufac- C. How and to Whom Do I Submit CBI or the procedures for claiming CBI, turing Comments? please consult the person listed under 32532 Pesticide manufac- FOR FURTHER INFORMATION CONTACT. turing You may submit comments through the mail, in person, or electronically. To E. What Should I Consider as I Prepare This listing is not intended to be ensure proper receipt by EPA, it is My Comments for EPA? exhaustive, but rather provides a guide imperative that you identify docket control number OPP–30509B in the You may find the following for readers regarding entities likely to be suggestions helpful for preparing your affected by this action. Other types of subject line on the first page of your response. comments: entities not listed in the table could also 1. Explain your views as clearly as 1. By mail. Submit your comments to: be affected. The North American possible. Industrial Classification System Public Information and Records 2. Describe any assumptions that you (NAICS) codes have been provided to Integrity Branch (PIRIB), Information used. assist you and others in determining Resources and Services Division 3. Provide copies of any technical whether or not this action might apply (7502C), Office of Pesticide Programs information and/or data you used that to certain entities. If you have questions (OPP), Environmental Protection support your views. regarding the applicability of this action Agency, 1200 Pennsylvania Ave., NW., 4. If you estimate potential burden or to a particular entity, consult the person Washington, DC 20460. costs, explain how you arrived at the listed under FOR FURTHER INFORMATION 2. In person or by courier. Deliver estimate that you provide. CONTACT. your comments to: Public Information 5. Provide specific examples to and Records Integrity Branch (PIRIB), illustrate your concerns. B. How Can I Get Additional Information Resources and Services 6. Offer alternative ways to improve Information, Including Copies of this Division (7502C), Office of Pesticide the registration activity. Document and Other Related Programs (OPP), Environmental 7. Make sure to submit your Documents? Protection Agency, Rm. 119, Crystal comments by the deadline in this 1. Electronically. You may obtain Mall #2, 1921 Jefferson Davis Hwy., notice. electronic copies of this document, and Arlington, VA. The PIRIB is open from 8. To ensure proper receipt by EPA, certain other related documents that 8:30 a.m. to 4 p.m., Monday through be sure to identify the docket control might be available electronically, from Friday, excluding legal holidays. The number assigned to this action in the the EPA Internet Home Page at http:// PIRIB telephone number is (703) 305– subject line on the first page of your www.epa.gov/. To access this 5805. response. You may also provide the
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name, date, and Federal Register SUMMARY: This notice announces the B. How Can I Get Additional citation. initial filing of a pesticide petition Information, Including Copies of this proposing the establishment of Document and Other Related II. Registration Application regulations for residues of a certain Documents? EPA received an application as pesticide chemical in or on various food 1. Electronically. You may obtain follows to register a pesticide product commodities. electronic copies of this document, and containing an active ingredient not DATES: Comments, identified by docket certain other related documents that included in any previously registered control number OPP–2002–0012, must might be available electronically, from products pursuant to the provision of be received on or before May 31, 2002. the EPA Internet Home Page at http:// section 3(c)(4) of FIFRA. Notice of www.epa.gov/. To access this receipt of the application does not ADDRESSES: Comments may be document, on the Home Page select imply a decision by the Agency on the submitted by mail, electronically, or in ‘‘Laws and Regulations,’’ ‘‘Regulations application. person. Please follow the detailed instructions for each method as and Proposed Rules,’’ and then look up Product Containing an Active Ingredient provided in Unit I.C. of the the entry for this document under the Not Included in Any Previously SUPPLEMENTARY INFORMATION. To ensure ‘‘Federal Register—Environmental Registered Products proper receipt by EPA, it is imperative Documents.’’ You can also go directly to that you identify docket control number the Federal Register listings at http:// OPP–2002–0012 in the subject line on www.epa.gov/fedrgstr/. EPA File Symbol 524-LEI the first page of your response. 2. In person. The Agency has established an official record for this In the Federal Register of March 19, FOR FURTHER INFORMATION CONTACT: By action under docket control number 2001 (66 FR 15435) (FRL–6771–5), EPA mail: Shaja R. Brothers, Registration OPP–2002–0012. The official record announced receipt of a seed increase Support Branch, Registration Division consists of the documents specifically registration application from Monsanto (7505C), Office of Pesticide Programs, referenced in this action, any public Company, 700 Chesterfield Parkway N., Environmental Protection Agency, 1200 comments received during an applicable St. Louis, MO 63198 to register the Pennsylvania Ave., NW., Washington, comment period, and other information product Event MON 863: Corn DC 20460; telephone number: (703) related to this action, including any Rootworm Protected Corn (ZMIR13L) 308–3194; e-mail address: information claimed as confidential containing the plant-pesticide Bacillus [email protected]. business information (CBI). This official thuringiensis Cry3Bb protein and the SUPPLEMENTARY INFORMATION: record includes the documents that are genetic material (Vector ZMIR13L) physically located in the docket, as well necessary for its production in corn. I. General Information as the documents that are referenced in Monsanto subsequently modified their A. Does this Action Apply to Me? those documents. The public version of application for full commercial use and the official record does not include any EPA announced receipt of the You may be affected by this action if information claimed as CBI. The public application on March 13, 2001 (67 FR you are an agricultural producer, food version of the official record, which 11330) (FRL–6828–1). The original manufacturer or pesticide manufacturer. includes printed, paper versions of any comment period ended on April 12, Potentially affected categories and electronic comments submitted during 2002. The comment period is being entities may include, but are not limited an applicable comment period, is extended to May 31, 2002. Proposed to: available for inspection in the Public Classification/Use: None. For full Information and Records Integrity commercial use. Branch (PIRIB), Rm. 119, Crystal Mall List of Subjects #2, 1921 Jefferson Davis Highway, NAICS Examples of poten- Arlington, VA, from 8:30 a.m. to 4 p.m., Environmental protection, Pesticides Categories tially affected enti- Codes ties Monday through Friday, excluding legal and pest. holidays. The PIRIB telephone number is (703) 305–5805. Dated: April 19, 2002. Industry 111 Crop production 112 Animal production Janet L. Andersen, 311 Food manufac- C. How and to Whom Do I Submit Director, Biopesticides and Pollution turing Comments? Prevention Division, Office of Pesticide 32532 Pesticide manufac- You may submit comments through Programs. turing the mail, in person, or electronically. To [FR Doc. 02–10627 Filed 4–30–02; 8:45 am] ensure proper receipt by EPA, it is BILLING CODE 6560–50–S This listing is not intended to be imperative that you identify docket exhaustive, but rather provides a guide control number OPP–2002–0012 in the for readers regarding entities likely to be subject line on the first page of your ENVIRONMENTAL PROTECTION affected by this action. Other types of response. AGENCY entities not listed in the table could also 1. By mail. Submit your comments to: be affected. The North American Public Information and Records [OPP–2002–0012; FRL–6833–4] Industrial Classification System Integrity Branch (PIRIB), Information (NAICS) codes have been provided to Resources and Services Division Notice of Filing a Pesticide Petition to assist you and others in determining (7502C), Office of Pesticide Programs Establish a Tolerance for a Certain whether or not this action might apply (OPP), Environmental Protection Pesticide Chemical in or on Food to certain entities. If you have questions Agency, 1200 Pennsylvania Ave., NW., AGENCY: Environmental Protection regarding the applicability of this action Washington, DC 20460. Agency (EPA). to a particular entity, consult the person 2. In person or by courier. Deliver listed under FOR FURTHER INFORMATION your comments to: Public Information ACTION: Notice. CONTACT. and Records Integrity Branch (PIRIB),
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Information Resources and Services 5. Provide specific examples to CFR part 180.516 by establishing Division (7502C), Office of Pesticide illustrate your concerns. tolerances for residues of fludioxonil (4- Programs (OPP), Environmental 6. Make sure to submit your (2,2-difluoro-1,3- benzodioxol-4-yl)-1H- Protection Agency, Rm. 119, Crystal comments by the deadline in this pyrrole-3-carbonitrile) in or on the Mall #2, 1921 Jefferson Davis Highway, notice. following raw agricultural commodities Arlington, VA. The PIRIB is open from 7. To ensure proper receipt by EPA, (RACs) with the respective tolerance 8:30 a.m. to 4 p.m., Monday through be sure to identify the docket control levels in parts per million (ppm): PP Friday, excluding legal holidays. The number assigned to this action in the 2E6359 proposes the establishment of a PIRIB telephone number is (703) 305– subject line on the first page of your tolerance for the bushberry subgroup, 5805. response. You may also provide the lingonberry, juneberry, and salal at 2.0 3. Electronically. You may submit name, date, and Federal Register ppm, PP 2E6365 proposes the your comments electronically by e-mail citation. establishment of a tolerance for to: [email protected], or you can II. What Action is the Agency Taking? watercress at 7.0 ppm, PP 2E6377 submit a computer disk as described proposes the establishment of a EPA has received a pesticide petition above. Do not submit any information tolerance for pistachio at 0.10 ppm and as follows proposing the establishment electronically that you consider to be PP 2E6393 proposes the establishment and/or amendment of regulations for CBI. Avoid the use of special characters of a tolerance for the caneberry residues of a certain pesticide chemical and any form of encryption. Electronic subgroup at 5.0 ppm. in or on various food commodities This notice includes a summary of submissions will be accepted in under section 408 of the Federal Food, Wordperfect 6.1/8.0 or ASCII file petitions prepared by Syngenta Crop Drug, and Cosmetic Act (FFDCA), 21 Protection Inc., Greensboro, North format. All comments in electronic form U.S.C. 346a. EPA has determined that must be identified by docket control Carolina, 27409. EPA has determined this petition contains data or that the petitions contain data or number OPP–2002–0012. Electronic information regarding the elements set information regarding the elements set comments may also be filed online at forth in section 408(d)(2); however, EPA forth in section 408(d)(2) of the FFDCA; many Federal Depository Libraries. has not fully evaluated the sufficiency however, EPA has not fully evaluated of the submitted data at this time or D. How Should I Handle CBI That I the sufficiency of the submitted data at whether the data support granting of the Want to Submit to the Agency? this time or whether the data support petition. Additional data may be needed granting of the petitions. Additional Do not submit any information before EPA rules on the petition. electronically that you consider to be data may be needed before EPA rules on CBI. You may claim information that List of Subjects these petitions. you submit to EPA in response to this Environmental protection, A. Residue Chemistry document as CBI by marking any part or Agricultural commodities, Feed 1. Plant metabolism. The plant all of that information as CBI. additives, Food additives, Pesticides metabolism of fludioxonil is adequately Information so marked will not be and pests, Reporting and recordkeeping understood for the purpose of the disclosed except in accordance with requirements. procedures set forth in 40 CFR part 2. proposed tolerances. Dated: April 15, 2002. In addition to one complete version of 2. Analytical method. Syngenta has the comment that includes any Debra Edwards, developed and validated analytical information claimed as CBI, a copy of Acting Director, Registration Division, Office methodology for enforcement purposes. the comment that does not contain the of Pesticide Programs. This method (Syngenta Crop Protection information claimed as CBI must be Summary of Petitions Method AG-597B) has passed an Agency petition method validation for several submitted for inclusion in the public The petitioner summary of the version of the official record. commodities and is currently the pesticide petition is printed below as enforcement method for fludioxonil. Information not marked confidential required by section 408(d)(3) of the will be included in the public version This method has also been forwarded to FFDCA. The summary of the petition FDA for inclusion into PAM II. An of the official record without prior was prepared by the petitioner and notice. If you have any questions about extensive database of method validation represents the view of the petitioners. data using this method on various crop CBI or the procedures for claiming CBI, EPA is publishing the petition summary please consult the person identified commodities is available. verbatim without editing it in any way. 3. Magnitude of residues. Complete under FOR FURTHER INFORMATION The petition summary announces the residue data for caneberry subgroup, CONTACT. availability of a description of the bushberry subgroup, lingonberry, E. What Should I Consider as I Prepare analytical methods available to EPA for juneberry, salal, pistachio and My Comments for EPA? the detection and measurement of the watercress have been submitted. The pesticide chemical residues or an You may find the following requested tolerances are adequately explanation of why no such method is supported. suggestions helpful for preparing your needed. comments: B. Toxicological Profile 2E6359, 2E6365, 2E6377, and 2E6393 1. Explain your views as clearly as The nature of the toxic effects caused possible. EPA has received pesticide petitions by fludioxonil are discussed in unit II.B 2. Describe any assumptions that you (PP) 2E6359, 2E6365, 2E6377, and of the Federal Register on December 29, used. 2E6393 from the Interregional Research 2000 (65 FR 82927) (FRL–6760–9). 3. Provide copies of any technical Project Number 4 (IR-4), New Jersey 1. Animal metabolism. The information and/or data you used that Agricultural Experiment Station, P. O. metabolism of fludioxonil in rats is support your views. Box 231 Rutgers University, New adequately understood. 4. If you estimate potential burden or Brunswick, NJ 08903 proposing, 2. Metabolite toxicology. The residues costs, explain how you arrived at the pursuant to section 408(d) of the of concern for tolerance setting purposes estimate that you provide. FFDCA, 21 U.S.C. 346a(d), to amend 40 is the parent compound. Consequently,
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there is no additional concern for dermal exposures were considered. chronic DWLOC of 200 ppb is toxicity of metabolites. Based on the residential use pattern, no considerably higher than the chronic 3. Endocrine disruption. Fludioxonil long-term post-application residential EEC of 33 ppb and the MOE far exceeds does not belong to a class of chemicals exposure is expected. the benchmark MOE of 100. known for having adverse effects on the endocrine system. No estrogenic effects D. Cumulative Effects F. International Tolerances have been observed in the various short- EPA does not have, at this time, There are no Codex Maximum and long-term studies conducted with available data to determine whether Residue Levels established for various mammalian species. fludioxonil has a common mechanism fludioxonil. of toxicity with other substances or how C. Aggregate Exposure [FR Doc. 02–10339 Filed 4–30–02; 8:45 am] to include this pesticide in a cumulative BILLING CODE 6560–50–S 1. Dietary exposure. The dietary risk assessment. Unlike other pesticides exposure evaluation was made using the for which EPA has followed a Dietary Exposure Evaluation Model cumulative risk approach based on a ENVIRONMENTAL PROTECTION (DEEM , version 7.76) from Novigen common mechanism of toxicity, AGENCY Sciences, Inc. DEEM default fludioxonil does not appear to produce processing factors were used along with a toxic metabolite produced by other [OPP–2002–0015; FRL–6833–7] USDA’s Continuing Survey of Food substances. For the purposes of this Notice of Filing Pesticide Petitions to Intake by Individuals (CSFII) with the tolerance action, therefore, EPA has not Establish a Tolerance for Certain 1994–96 consumption database and the assumed that fludioxonil has a common Pesticide Chemicals in or on Food Supplemental CSFII children’s survey mechanism of toxicity with other (1998) consumption database. DEEM substances. AGENCY: Environmental Protection inputs for all currently registered uses, E. Safety Determination Agency (EPA). pending uses, and proposed uses. ACTION: Notice. Secondary residues in animal 1. U.S. population. The chronic commodities were not considered in dietary exposure analysis showed that SUMMARY: This notice announces the this evaluation since calculations exposure from the established initial filing of pesticide petitions showed that residue transfers from fed tolerances and proposed new tolerances proposing the establishment of items to livestock and milk were for the general U.S. population would regulations for residues of certain minimal and resulted in negligible be 8% of the RfD. Chronic exposures to pesticide chemicals in or on various exposures. the U.S. population resulted in a margin food commodities. of exposure (MOE) of 1445. The i. Food. This chronic assessment DATES: Comments, identified by docket utilized established tolerance values for benchmark MOE for this assessment is control number OPP–2002–0015, must the current uses and proposed tolerance 100. Therefore, results from the %RfD be received on or before May 31, 2002. values for the added proposed uses. based risk analysis showed acceptable ADDRESSES: Comments may be This assessment assumes 100% crop safety margins with respect to chronic submitted by mail, electronically, or in treated for all commodities except exposures incurred by the dietary person. Please follow the detailed strawberries and bulb vegetables. For consumption of fludioxonil-treated instructions for each method as strawberries and bulb vegetables, commodities. provided in Unit I.C. of the projected percent crop treated values of 2. Infants and children. The chronic SUPPLEMENTARY INFORMATION. To ensure 50% and 28%, respectively, were reference dose (RfD) for fludioxonil is proper receipt by EPA, it is imperative calculated as a percent of base acres 0.03 milligrams/kilograms (mg/kg) body that you identify docket control number divided by the total planted acres. weight/day and is based on a one year ii. Drinking water. Estimated dog study with a no observed adverse OPP–2002–0015 in the subject line on Environmental Concentrations (EEC’s) effect level (NOAEL) of 3.3 mg/kg body the first page of your response. of fludioxonil in drinking water were weight/day and a safety factor of 100X. FOR FURTHER INFORMATION CONTACT: determined for the highest use rate of No additional FQPA safety factor was Sidney Jackson, Registration Division fludioxonil, which is turfgrass. SCI- applied. The chronic dietary exposure (7505C), Office of Pesticide Programs, GROW (Version 2.1) used to determine analysis showed that exposure from the Environmental Protection Agency, 1200 acute and chronic estimated established tolerances and proposed Pennsylvania Ave., NW., Washington, environmental concentrations in ground new tolerances for Non-Nursing Infants DC 20460; telephone number: (703) water. FIRST (Version 1.0) was used to <1 years old (the subgroup with the 305–7610; e-mail address: determine acute and chronic estimated highest exposure) would be 34% of the [email protected]. environmental concentrations in surface RfD. The most sensitive subpopulation SUPPLEMENTARY INFORMATION: water. in the chronic assessment was non- Based on model outputs, the nursing infants (<1 year old) with a I. General Information estimated environmental concentrations MOE of 329. The benchmark MOE for A. Does this Action Apply to Me? of fludioxonil are 0.0553 parts per this assessment is 100. Therefore, the billion (ppb) for acute and chronic estimates of dietary exposure clearly You may be affected by this action if exposure to ground water and 70 ppb indicate adequate safety margins for the you are an agricultural producer, food and 33 ppb for acute and chronic overall U.S. population. manufacturer or pesticide manufacturer. exposure, respectively, to surface water. Chronic Drinking Water Levels of Potentially affected categories and 2. Non-dietary exposure. There is a Comparison (DWLOC) were calculated entities may include, but are not limited potential residential post-application based on a chronic RfD of 0.03 mg/kg/ to: exposure to adults and children entering day. For the chronic assessment, the Examples of poten- residential areas treated with non-nursing infant subpopulation Categories NAICS tially affected enti- fludioxonil. Since the Agency did not generated the lowest chronic DWLOC of codes ties select a short-term endpoint for dermal approximately 200 ppb. This gave a exposure, only intermediate-term corresponding MOE value of 1,000. The Industry 111 Crop production
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holidays. The PIRIB telephone number of the official record without prior NAICS Examples of poten- Categories codes tially affected enti- is (703) 305–5805. notice. If you have any questions about ties CBI or the procedures for claiming CBI, C. How and to Whom Do I Submit please consult the person listed under 112 Animal production Comments? FOR FURTHER INFORMATION CONTACT. 311 Food manufac- You may submit comments through turing the mail, in person, or electronically. To E. What Should I Consider as I Prepare 32532 Pesticide manufac- My Comments for EPA? turing ensure proper receipt by EPA, it is imperative that you identify docket You may find the following This listing is not intended to be control number OPP–2002–0015 in the suggestions helpful for preparing your exhaustive, but rather provides a guide subject line on the first page of your comments: for readers regarding entities likely to be response. 1. Explain your views as clearly as affected by this action. Other types of 1. By mail. Submit your comments to: possible. entities not listed in the table could also Public Information and Records 2. Describe any assumptions that you be affected. The North American Integrity Branch (PIRIB), Information used. Industrial Classification System Resources and Services Division 3. Provide copies of any technical (NAICS) codes have been provided to (7502C), Office of Pesticide Programs information and/or data you used that assist you and others in determining (OPP), Environmental Protection support your views. whether or not this action might apply Agency, 1200 Pennsylvania Ave., NW., 4. If you estimate potential burden or to certain entities. If you have questions Washington, DC 20460. costs, explain how you arrived at the regarding the applicability of this action 2. In person or by courier. Deliver estimate that you provide. to a particular entity, consult the person your comments to: Public Information 5. Provide specific examples to listed under FOR FURTHER INFORMATION and Records Integrity Branch (PIRIB), illustrate your concerns. 6. Make sure to submit your CONTACT. Information Resources and Services Division (7502C), Office of Pesticide comments by the deadline in this B. How Can I Get Additional Programs (OPP), Environmental notice. Information, Including Copies of this Protection Agency, Rm. 119, Crystal 7. To ensure proper receipt by EPA, Document and Other Related Mall #2, 1921 Jefferson Davis Hwy., be sure to identify the docket control Documents? Arlington, VA. The PIRIB is open from number assigned to this action in the 1. Electronically. You may obtain 8:30 a.m. to 4 p.m., Monday through subject line on the first page of your electronic copies of this document, and Friday, excluding legal holidays. The response. You may also provide the certain other related documents that PIRIB telephone number is (703) 305– name, date, and Federal Register might be available electronically, from 5805. citation. the EPA Internet Home Page at http:// 3. Electronically. You may submit II. What Action is the Agency Taking? www.epa.gov/. To access this your comments electronically by e-mail document, on the Home Page select to: [email protected], or you can EPA has received pesticide petitions ‘‘Laws and Regulations’’ and then look submit a computer disk as described as follows proposing the establishment up the entry for this document under above. Do not submit any information and/or amendment of regulations for the ‘‘Federal Register—Environmental electronically that you consider to be residues of certain pesticide chemicals Documents.’’ You can also go directly to CBI. Avoid the use of special characters in or on various food commodities the Federal Register listings at http:// and any form of encryption. Electronic under section 408 of the Federal Food, www.epa.gov/fedrgstr/. submissions will be accepted in Drug, and Cosmetic Act (FFDCA), 21 2. In person. The Agency has WordPerfect 6.1/8.0 or ASCII file U.S.C. 346a. EPA has determined that established an official record for this format. All comments in electronic form these petitions contain data or action under docket control number must be identified by docket control information regarding the elements set OPP–2002–0015. The official record number OPP–2002–0015. Electronic forth in section 408(d)(2); however, EPA consists of the documents specifically comments may also be filed online at has not fully evaluated the sufficiency referenced in this action, any public many Federal Depository Libraries. of the submitted data at this time or comments received during an applicable whether the data support granting of the comment period, and other information D. How Should I Handle CBI That I petition. Additional data may be needed related to this action, including any Want to Submit to the Agency? before EPA rules on the petition. information claimed as Confidential Do not submit any information List of Subjects Business Information (CBI). This official electronically that you consider to be record includes the documents that are CBI. You may claim information that Environmental protection, physically located in the docket, as well you submit to EPA in response to this Agricultural commodities, Feed as the documents that are referenced in document as CBI by marking any part or additives, Food additives, Pesticides those documents. The public version of all of that information as CBI. and pests, Reporting and recordkeeping the official record does not include any Information so marked will not be requirements. information claimed as CBI. The public disclosed except in accordance with Dated: April 15, 2002. version of the official record, which procedures set forth in 40 CFR part 2. Debra Edwards, includes printed, paper versions of any In addition to one complete version of Acting Director, Registration Division, Office electronic comments submitted during the comment that includes any of Pesticide Programs. an applicable comment period, is information claimed as CBI, a copy of available for inspection in the Public the comment that does not contain the Summaries of Petitions Information and Records Integrity information claimed as CBI must be Petitioner summaries of the pesticide Branch (PIRIB), Rm. 119, Crystal Mall submitted for inclusion in the public petitions are printed below as required #2, 1921 Jefferson Davis Hwy., version of the official record. by section 408(d)(3) of the FFDCA. The Arlington, VA, from 8:30 a.m. to 4 p.m., Information not marked confidential summaries of the petitions were Monday through Friday, excluding legal will be included in the public version prepared by the petitioners and
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represent the views of the petitioners. watercress have been submitted. The values proposed in this submission are: EPA is publishing the petition requested tolerances are adequately Caneberry subgroup (10.0 ppm); summaries verbatim without editing supported. pistachio (0.07 ppm); watercress (20 them in any way. The petition summary ppm); bushberry subgroup (3.0 ppm), B. Toxicological Profile announces the availability of a lingonberry (3.0 ppm), juneberry (3.0 description of the analytical methods An assessment of toxic effects caused ppm) and salal (3.0 ppm). available to EPA for the detection and by cyprodinil is discussed in Unit III. A. a. Food. The dietary exposure measurement of the pesticide chemical and Unit III. B. of the Federal Register evaluation was made using the dietary residues or an explanation of why no dated June 22, 2001 (66 FR 33478). exposure evaluation model (DEEMtm, such method is needed. 1. Animal metabolism. The version 7.76) from Novigen Sciences, metabolism of cyprodinil in rats is Inc. DEEM default processing factors Interregional Research Project Number adequately understood. were used along with United States 4 (IR–4) 2. Metabolite toxicology. The residues Department of Agriculture (USDA) PP 1E6304, 2E6357, 2E6364, 2E6373 of concern for tolerance setting purposes continuing survey of food intake by is the parent compound. Based on individuals (CSFII) with the 1994–1996 EPA has received pesticide petitions structural similarities to genotoxic consumption data base and the 1E6304, 2E6357, 2E6364 and 2E6373, nucleotide analogs, there was concern supplemental CSFII children’s survey from the Interregional Research Project that the pryimidine metabolites (CGA– (1998) consumption data base. DEEM Number 4 (IR–4), 681 U.S. Highway #1 249287, NOA–422054) may be more inputs for all currently registered uses, South, North Brunswick, NJ 08902–3390 toxic than the parent compound. and proposed uses listed above. proposing, pursuant to section 408(d) of However, EPA’s review indicates Secondary residues in animal the FFDCA, 21 U.S.C. 346a(d), to amend similar results in an acute oral and commodities were not considered in 40 CFR 180.532 by establishing mutagenicity studies with both the this evaluation since calculations tolerances for residues of cyprodinil, [4- parent compound and the CGA–249287 showed that residue transfers from feed cyclopropyl-6-methyl-N-phenyl-2- metabolite. EPA concluded that the items to livestock and milk were pyrimidinamine], in or on the following toxicity of the CGA–249287 and NOA– minimal and resulted in negligible raw agricultural commodities (RACs): 422054 metabolites is no greater than exposures. 1. PP 1E6304 proposes a tolerance for that of the parent, conditional on i. Acute exposure. Acute dietary risk caneberry subgroup at 10.0 parts per submission and review of confirmatory assessments are performed for a food- million (ppm). data of an acute oral toxicity study and use pesticide if a toxicological study has 2. PP 2E6357 proposes a tolerance for bacterial reverse mutation assay for the indicated the possibility of an effect of bushberry subgroup, lingonberry, NOA–422054 metabolite. Although the concern occurring as a result of a 1–day juneberry, and salal, at 3.0 ppm. metabolites CGA–232449 and CGA– or single exposure. EPA has not 3. PP 2E6364 proposes a tolerance for 263208 were determined to be of conducted an acute dietary risk watercress at 20 ppm. potential toxicological concern, they are assessment since no toxicological 4. PP 2E6373 proposes a tolerance for not expected to be more toxic than endpoint of concern was identified pistachio at 0.07 ppm. cyprodinil per se. during the review of the available data. Additional data may be needed before 3. Endocrine disruption. Cyprodinil ii. Chronic exposure. This chronic EPA rules on the petitions. Syngenta does not belong to a class of chemicals assessment utilized established Crop Protection, Inc., Greenboro, NC known or suspected of having adverse tolerance values for the current uses and 27409, is the manufacturer of the effects on the endocrine system. proposed tolerance values for the added chemical pesticide, cyprodinil. Developmental toxicity studies in rats proposed uses. This assessment assumes Syngenta prepared and submitted the and rabbits and a reproduction study in 100% crop treated for all commodities. following summary of information, data, rats gave no indication that cyprodinil The chronic population adjusted dose and arguments in support of the might have any effects on endocrine (cPAD) for cyprodinil is 0.03 milligram/ pesticide petitions. This summary does function related to development and kilogram (mg/kg) body weight/day (bwt/ not necessarily reflect the findings of reproduction. The chronic studies also day) and is based on a chronic rat study EPA. showed no evidence of a long-term with a no observed adverse effect level (NOAEL) of 2.7 mg/kg bwt/day and a A. Residue Chemistry effect related to the endocrine system. uncertainty factor (UF) of 100X. No 1. Plant metabolism. The metabolism C. Aggregate Exposure additional Food Quality Protection Act of cyprodinil is adequately understood 1. Dietary exposure. Permanent (FQPA) safety factor was applied. For for the purpose of the proposed tolerances have been established (40 the purpose of aggregate assessment, the tolerances. CFR 180.532(a)) for the residues of exposure values were expressed in 2. Analytical method. Syngenta has cyprodinil, in or on a variety of RACs. terms of margin of exposure (MOE) developed and validated analytical Tolerance are established on grape at 2.0 which was calculated by dividing the methodology for enforcement purposes. ppm, grape, raisin at 3.0 ppm; onion, NOAEL by the exposure for each This method (Syngenta Crop Protection dry bulb at 0.6 ppm, onion green at 4.0 population subgroup. The benchmark Method AG–631B) has passed an ppm; stone fruit group at 2.0 ppm, pome MOE for this assessment is 100. Results Agency petition method validation for fruit group at 0.1 ppm, apple, wet from the cPAD based risk analysis several commodities and is currently pomace at 0.15 ppm; almond nutmeat at showed that there were acceptable the enforcement method for cyprodinil. 0.02 ppm and almond hulls at 0.05 safety margins with respect to chronic An extensive data base of the method ppm. Time-limited tolerances under exposures incurred by the dietary validation data using this method on section 18 of Federal Insecticide, consumption of cyprodinil-treated various crop commodities is available. Fungicide, and Rodenticide Act (FIFRA) commodities. Chronic exposures to the 3. Magnitude of residues. Complete (emergency exemption) have been U.S. population (48 states, all seasons) residue data for caneberry subgroup, established under 180.532(b) for resulted in a MOE of 1,274 (7.1% of the bushberry subgroup, lingonberry, caneberry subgroup at 10.0 ppm, and total cPAD of 0.03 mg/kg bwt/day). The juneberry, salal, pistachio, and strawberry at 5.0 ppm. Tolerances most sensitive subpopulation in the
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chronic assessment was children (1 to 6 and chronic exposure to ground water 2. Non-dietary exposure. Cyprodinil is years) with a MOE of 354 (25.5% of the and 35 ppb and 1 ppb for acute and not registered for use on any sites that cPAD). The results of the chronic chronic exposure, respectively, to would result in residential exposure. dietary risk assessment are presented in surface water. Chronic drinking water Therefore, the aggregate risk is the sum Table 1. levels of comparison (DWLOC) were of the risk from food and water, which b. Drinking water exposure. Estimated calculated based on a cPAD of 0.03 mg/ do not exceed the Agency’s level of environmental concentrations (EEC’s) of kg/day. For the chronic assessment, concern. cyprodinil in drinking water were children (1 to 6 years) subpopulation determined for the highest use rate of generated the lowest chronic DWLOC of 3. Chronic aggregate exposure. Using cyprodinil, which is almond. Screening approximately 224 ppb. This gave a the total MOE equation for the concentration in ground water (SCI- corresponding MOE value of 27,000. determination of aggregate exposure GROW) (Version 2.1) was used to The chronic DWLOC of 224 ppb is (food and drinking water only), resulted determine acute and chronic EECs in considerably higher than the chronic in an aggregate MOET of 342 for the ground water. First (Version 1.0) was EEC of 1 ppb and the MOE far exceeds most sensitive subpopulation, children used to determine acute and chronic the benchmark MOE of 100. The results (1 to 6 years). Table 1 summarizes the EECs in surface water. Based on model for the U.S. population and the most aggregate chronic exposure (food and outputs, the EECs of cyprodinil are sensitive subpopulation are presented in drinking water only) for cyprodinil. 0.0056 parts per billion (ppb) for acute Table 1.
TABLE 1.—CYPRODINIL CHRONIC AGGREGATE EXPOSURES
Drinking Water MOE Drinking Water % Population Sub-group Food MOEA,B,C Food % cPADD MOE C, E A, B, C cPADD T
U.S. population 94,5 0,1 1,274 7,1 1,229
Children (1 to 6 years) 27 0,33 354 25,5 342 AMOE= NOAEL/Exposure BNOAEL= 3.3 mg/kg body weight/day CBenchmark MOE = 100 DcPAD = 0.03 mg/kg body weight/day E MOET = 1/((1/MOEfood)+(1/MOEd.water))
D. Cumulative Effects 2. Infants and children. The chronic pesticide chemicals in or on various dietary exposure analysis showed that food commodities. Cumulative exposure to substances exposure from the proposed new DATES: Comments, identified by docket with a common mechanism of toxicity. tolerances for children 1 to 6 years old Section 408(b)(2)(D)(v) requires that, control number OPP–2002–0029, must (the subgroup with the highest be received on or before May 31, 2002. when considering whether to establish, exposure) would be 25.5% of the cPAD. ADDRESSES: Comments may be modify, or revoke a tolerance, the Therefore, the estimates of dietary submitted by mail, electronically, or in Agency consider ‘‘available exposure clearly indicate adequate person. Please follow the detailed information’’ concerning the cumulative safety margins for the overall U.S. instructions for each method as effects of a particular pesticide’s population. residues and ‘‘other substances that provided in Unit I.C. of the have a common mechanism of toxicity.’’ F. International Tolerances SUPPLEMENTARY INFORMATION. To ensure EPA does not have, at this time, There are no Codex maximum residue proper receipt by EPA, it is imperative available data to determine whether level’s established for cyprodinil. that you identify docket control number cyprodinil has a common mechanism of OPP–2002–0029 in the subject line on [FR Doc. 02–10632 Filed 4–30–02; 8:45 am] toxicity with other substances or how to the first page of your response. BILLING CODE 6560–50–S include this pesticide in a cumulative FOR FURTHER INFORMATION CONTACT: risk assessment. Unlike other pesticides Sidney Jackson, Registration Division for which EPA has followed a ENVIRONMENTAL PROTECTION (7505C, Office of Pesticide Programs, cumulative risk approach based on a AGENCY Environmental Protection Agency, 1200 common mechanism of toxicity, Pennsylvania Ave., NW., Washington, cyprodinil does not appear to produce [OPP–2002–0029; FRL–6834–7] DC 20460; telephone number: (703) a toxic metabolite produced by other 305–7610; e-mail address: substances. For the purposes of this Notice of Filing Pesticide Petitions to [email protected]. tolerance action, therefore, EPA has not Establish a Tolerance for Certain SUPPLEMENTARY INFORMATION: assumed that cyprodinil has a common Pesticide Chemicals in or on Food mechanism of toxicity with other I. General Information substances. AGENCY: Environmental Protection A. Does this Action Apply to Me? E. Safety Determination Agency (EPA). ACTION: Notice. You may be affected by this action if 1. U.S. population. The chronic you are an agricultural producer, food dietary exposure analysis showed that SUMMARY: This notice announces the manufacturer or pesticide manufacturer. exposure from the proposed new initial filing of pesticide petitions Potentially affected categories and tolerances for the general U.S. proposing the establishment of entities may include, but are not limited population would be 7.1% of the cPAD. regulations for residues of certain to:
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#2, 1921 Jefferson Davis Highway, version of the official record. Arlington, VA, from 8:30 a.m. to 4 p.m., Information not marked confidential NAICS Examples of poten- Monday through Friday, excluding legal will be included in the public version Categories tially affected enti- holidays. The PIRIB telephone number of the official record without prior codes ties is (703) 305–5805. notice. If you have any questions about Industry 111 Crop production C. How and to Whom Do I Submit CBI or the procedures for claiming CBI, 112 Animal production Comments? please consult the person listed under 311 Food manufac- FOR FURTHER INFORMATION CONTACT. turing You may submit comments through 32532 Pesticide manufac- the mail, in person, or electronically. To E. What Should I Consider as I Prepare turing ensure proper receipt by EPA, it is My Comments for EPA? imperative that you identify docket You may find the following This listing is not intended to be control number OPP–2002–0029 in the suggestions helpful for preparing your exhaustive, but rather provides a guide subject line on the first page of your comments: for readers regarding entities likely to be response. 1. Explain your views as clearly as affected by this action. Other types of 1. By mail. Submit your comments to: possible. entities not listed in the table could also Public Information and Records 2. Describe any assumptions that you be affected. The North American Integrity Branch (PIRIB), Information used. Industrial Classification System Resources and Services Division 3. Provide copies of any technical (NAICS) codes have been provided to (7502C), Office of Pesticide Programs information and/or data you used that assist you and others in determining (OPP), Environmental Protection support your views. whether or not this action might apply Agency, 1200 Pennsylvania Ave., NW., 4. If you estimate potential burden or to certain entities. If you have questions Washington, DC 20460. costs, explain how you arrived at the regarding the applicability of this action 2. In person or by courier. Deliver estimate that you provide. to a particular entity, consult the person your comments to: Public Information 5. Provide specific examples to listed under FOR FURTHER INFORMATION and Records Integrity Branch (PIRIB), illustrate your concerns. CONTACT. Information Resources and Services 6. Make sure to submit your Division (7502C), Office of Pesticide comments by the deadline in this B. How Can I Get Additional Programs (OPP), Environmental notice. Information, Including Copies of this Protection Agency, Rm. 119, Crystal 7. To ensure proper receipt by EPA, Document and Other Related be sure to identify the docket control Documents? Mall #2, 1921 Jefferson Davis Highway, Arlington, VA. The PIRIB is open from number assigned to this action in the 1. Electronically. You may obtain 8:30 a.m. to 4 p.m., Monday through subject line on the first page of your electronic copies of this document, and Friday, excluding legal holidays. The response. You may also provide the certain other related documents that PIRIB telephone number is (703) 305– name, date, and Federal Register might be available electronically, from 5805. citation. the EPA Internet Home Page at http:// 3. Electronically. You may submit II. What Action is the Agency Taking? www.epa.gov/. To access this your comments electronically by e-mail document, on the Home Page select to: [email protected], or you can EPA has received pesticide petitions ‘‘Laws and Regulations’’ and then look submit a computer disk as described as follows proposing the establishment up the entry for this document under above. Do not submit any information and/or amendment of regulations for the ‘‘Federal Register—Environmental electronically that you consider to be residues of certain pesticide chemicals Documents.’’ You can also go directly to CBI. Avoid the use of special characters in or on various food commodities the Federal Register listings at http:// and any form of encryption. Electronic under section 408 of the Federal Food, www.epa.gov/fedrgstr/. submissions will be accepted in Drug, and Cosmetic Act (FFDCA), 21 2. In person. The Agency has Wordperfect 6.1/8.0 or ASCII file U.S.C. 346a. EPA has determined that established an official record for this format. All comments in electronic form these petitions contain data or action under docket control number must be identified by docket control information regarding the elements set OPP–2002–0029. The official record number OPP–2002–0029. Electronic forth in section 408(d)(2); however, EPA consists of the documents specifically comments may also be filed online at has not fully evaluated the sufficiency referenced in this action, any public many Federal Depository Libraries. of the submitted data at this time or comments received during an applicable whether the data support granting of the comment period, and other information D. How Should I Handle CBI That I petition. Additional data may be needed related to this action, including any Want to Submit to the Agency? before EPA rules on the petition. information claimed as confidential Do not submit any information List of Subjects business information (CBI). This official electronically that you consider to be record includes the documents that are CBI. You may claim information that Environmental protection, physically located in the docket, as well you submit to EPA in response to this Agricultural commodities, Feed as the documents that are referenced in document as CBI by marking any part or additives, Food a additives, Pesticides those documents. The public version of all of that information as CBI. and pests, Reporting and recordkeeping the official record does not include any Information so marked will not be requirements. information claimed as CBI. The public disclosed except in accordance with Dated: April 17, 2002. version of the official record, which procedures set forth in 40 CFR part 2. Debra Edwards, includes printed, paper versions of any In addition to one complete version of Acting Director, Registration Division, Office electronic comments submitted during the comment that includes any of Pesticide Programs. an applicable comment period, is information claimed as CBI, a copy of available for inspection in the Public the comment that does not contain the Summaries of Petitions Information and Records Integrity information claimed as CBI must be Petitioner summaries of the pesticide Branch (PIRIB), Rm. 119, Crystal Mall submitted for inclusion in the public petitions are printed below as required
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by section 408(d)(3) of the FFDCA. The support of the pesticide petitions. This Register dated September 21, 2001 (66 summaries of the petitions were summary does not necessarily reflect FR 48585). prepared by the petitioners and the findings of EPA. 1. Metabolite toxicology. There are no represent the views of the petitioners. A. Residue Chemistry metabolites of concern based on a EPA is publishing the petition differential metabolism between plants summaries verbatim without editing 1. Plant metabolism. The metabolism and animals. them in any way. The petition summary of azoxystrobin as well as the nature of 2. Endocrine disruption. There is no announces the availability of a the residues is adequately understood evidence that azoxystrobin is an description of the analytical methods for purposes of the proposed tolerances. endocrine disrupter. available to EPA for the detection and Plant metabolism has been evaluated in measurement of the pesticide chemical four diverse crops, cotton, grapes, C. Aggregate Exposure residues or an explanation of why no wheat, and peanuts which should serve 1. Dietary exposure from food and such method is needed. to define the similar metabolism of feed uses. Permanent tolerances have azoxystrobin in a wide range of crops. Interregional Research Project 4 (IR–4) been established (40 CFR 180.507(a)) for Parent azoxystrobin is the major the combined residues of azoxystrobin 2E6356, 2E6372, 2E6375, and 2E6376 component found in crops. and its Z isomer, in or on a variety of Azoxystrobin does not accumulate in EPA has received pesticide petitions raw agricultural commodities at levels crop seeds or fruits. Metabolism of numbers 2E6356, 2E6372, 2E6375, and ranging from 0.02 ppm on tree nuts to azoxystrobin in plants is complex with 2E6376, from the Interregional Research 50 ppm on leaves of root and tuber more than 15 metabolites identified. Project Number 4 (IR–4), 681 U.S. vegetables. Included in these tolerances These metabolites are present at low Highway #1 South, North Brunswick, NJ are the numerous ones for animal levels, typically much less than 5% of 08902–3390 proposing pursuant to commodities which were established in the total radioactive residue (TRR). section 408(d) of the FFDCA 21 U.S.C. conjunction with tolerances for animal 2. Analytical method. An adequate 346a(d), to amend 40 CFR 180.507 by feed. analytical method, gas chromatography establishing and/or amending tolerances i. Food. For the purposes of assessing for the combined residues of with nitrogen-phosphorus detection (GC–NPD) or in mobile phase by high the potential acute and chronic dietary azoxystrobin: (methyl (E)-2-2-[6-(2- exposure, Syngenta has estimated acute cyanophenoxy)pyrimidin-4- performance liquid chromatography with ultra-violet detection (HPLC-UV), and chronic exposure for all registered yloxy]phenyl-3-methoxyacrylate) and crops (EPA) pending uses, and newly the Z isomer of azoxystrobin, (methyl is available for enforcement purposes with a limit of detection (LOD) that proposed uses. Novigen Sciences Inc. (Z)-2-2-[6-(2-cyanophenoxy)pyrimidin- dietary exposure evaluation model 4-yloxy]phenyl-3-methoxyacrylate) in or allows monitoring of food with residues at or above the levels set in these (DEEM), which is licensed to Syngenta, on the agricultural commodities: was used to estimate the chronic and 1. PP# 2E6356 proposes to establish a tolerances. The analytical chemistry acute dietary exposure. tolerance for caneberry subgroup at 5.0 section of EPA concluded that the parts per million (ppm). method(s) are adequate for enforcement. a. Acute. The DEEM model was used 2. PP# 2E6372 proposes to increase Analytical methods are also available for analysis of individual food the existing tolerance for pistachio from for analyzing meat, milk, poultry, and consumption as reported by the United 0.02 ppm to 1.0 ppm. eggs which also underwent successful States Department of Agriculture 3. PP# 2E6375 proposes to establish a independent laboratory validations. (USDA) (1994–1996 data with tolerance for asparagus at 0.02 ppm. 3. Magnitude of residues. Complete supplemental continuing survey of food 4. PP# 2E6376 proposes to establish a residue data for azoxystrobin on intake by individuals (CSFII) children’s tolerance for cranberry at 0.5 ppm. caneberries, cranberries, pistachios, survey) using the Tier I analysis. The Additional data may be needed before head and stem brassica, and asparagus Tier I analysis used tolerance values as EPA rules on the petition. Syngenta have been submitted. The requested anticipated residues. Syngenta’s acute Crop Protection, Inc. (Syngenta), tolerances are adequately supported. dietary exposure assessment estimated Greenboro, North Carolina 27409, is the percent of the acute population adjusted manufacturer of the chemical pesticide, B. Toxicological Profile dose (aPAD) and corresponding margins azoxystrobin. Syngenta prepared and An assessment of toxic effects caused of exposure (MOE) for the overall U.S. submitted the following summary of by azoxystrobin is discussed in Unit III. population, and infants/children, as information, data, and arguments in A. and Unit III. B. of the Federal presented in Table 1.
TABLE 1.—AGGREGATE RISK ASSESSMENT FOR ACUTE EXPOSURE TO AZOXYSTROBIN
Surface Water Esti- aPAD Milligram/Kilo- mated Environ- Acute Drinking Water Population Sub-group1 gram/day (mg/kg/ Percent aPAD mental Concentra- Ground Water EEC Levels of Concern day) (Food) tion (EEC) Parts Per (ppb) (DWLOC) (ppb) Billion (ppb)
U.S. population 0.67 12 170 0.06 21,000
Children (1 to 6 years 0.67 19 170 0.06 5,300 old) 1Within each of these categories, the subgroup with the highest food exposure was selected.
b. Chronic. The DEEM model was (1994–1996 data with supplemental tolerance values as anticipated residues. used for analysis of individual food CSFII children’s survey) using the Tier Syngenta’s chronic dietary exposure consumption as reported by the USDA I analysis. The Tier I analysis used assessment estimated percent of the
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cPAD and corresponding margins of population, and infants/children, as exposure MOE for the overall U.S. presented in Table 2.
TABLE 2.—AGGREGATE RISK ASSESSMENT FOR ACUTE EXPOSURE TO AZOXYSTROBIN
Percent cPAD Surface Water EEC Ground Water EEC Population Sub-group1 cPAD (mg/kg/day) (Food) (ppb) (ppb) Acute DWLOC (ppb)
U.S. population 0.18 14 33 0.06 5,600
Children (1 to 6 years 0.18 24 33 0.06 1,300 old) 1Within each of these categories, the subgroup with the highest food exposure was selected.
ii. From drinking water. There is no to 6 years old (the subgroup with the F. International Tolerances established maximum concentration highest exposure) would be 24% of the level (MCL) for residues of azoxystrobin cPAD. There are no Codex MRLs established for azoxystrobin. in drinking water. No health advisory FFDCA section 408 provides that EPA levels for azoxystrobin in drinking water [FR Doc. 02–10633 Filed 4–30–02; 8:45 am] shall apply an additional ten-fold have been established. The BILLING CODE 6560–50–S margin of safety for infants and children concentration of azoxystrobin in surface water based on generic estimated in the case of threshold effects to environmental concentration (GENEEC) account for prenatal and postnatal ENVIRONMENTAL PROTECTION modeling and in ground water based on toxicity and the completeness of the AGENCY screening concentration in ground water data base unless EPA determines that a different margin of safety will be safe for (SCI-GROW) modeling. [FRL–7204–3] 2. From non-dietary uses. infants and children. Margins of safety Azoxystrobin is registered for are incorporated into EPA risk Gurley Pesticide Burial Superfund Site/ residential use on ornamentals and turf. assessments either directly through use Selma, NC, Notice of Proposed The Agency evaluated the existing of a margin of exposure analysis or Settlement toxicological data base for azoxystrobin through using uncertainty (safety) and assessed appropriate toxicological factors in calculating a dose level that AGENCY: Environmental Protection endpoints and dose levels of concern poses no appreciable risk to humans. In Agency. that should be assessed for risk either case, EPA generally defines the assessment purposes. Dermal absorption level of appreciable risk as exposure ACTION: Notice of proposed settlement. data indicate that absorption is less than that is greater than 1/100 of the no or equal to 4%. Syngenta agrees with observed effect level in the animal study SUMMARY: Under Section 122 of the previous EPA short-term and appropriate to the particular risk Comprehensive Environmental intermediate-term risk assessments for assessment. This hundred-fold Response, Compensation, and Liability residential exposure which show an Act (CERCLA), NSEW Corporation > uncertainty (safety) factor/margin of aggregate MOE 450 for short-term (Settling Respondent) entered into a > exposure (safety) is designed to account exposure and MOE of 550 for Prospective Purchaser Agreement (PPA) intermediate-term exposure. for combined interspecies and intraspecies variability. EPA believes with the Environmental Protection D. Cumulative Effects that reliable data support using the Agency (EPA), whereby the Respondent Azoxystrobin is related to the standard hundred-fold margin/factor not agrees to reimburse EPA a portion of its naturally occurring strobilurins. the additional ten-fold margin/factor response costs incurred at the Gurley Syngenta concluded that further when EPA has a complete data base Pesticide Burial Superfund Site (Site) consideration of a common mechanism under existing guidelines and when the located in Selma, Johnston County, of toxicity is not appropriate at this time severity of the effect in infants or North Carolina. EPA will consider since there are no data to establish children or the potency or unusual toxic public comments on the proposed whether a common mechanism exists properties of a compound do not raise settlement for thirty days. EPA may with any other substance. concerns regarding the adequacy of the withdraw from or modify the proposed settlement should such comments E. Safety Determination standard margin/factor. The Agency ad hoc Food Quality Protection Act (FQPA) disclose facts or considerations which 1. U.S. population. The acute dietary safety factor committee removed the indicate the proposed settlement is exposure analysis showed that exposure inappropriate, improper, or inadequate. from the proposed new tolerances the additional 10x safety factor to account for sensitivity of infants and children. Copies of the proposed settlement are general U.S. population would be 12% available from: Ms. Paula V. Batchelor, of the aPAD. Syngenta has considered the potential U.S. Environmental Protection Agency, 2. Infants and children. The acute aggregate exposure from food, water and Region IV, CERCLA Program Services dietary exposure analysis showed that non-occupational exposure routes and Branch, Waste Management Division, 61 exposure from the proposed new conclude that aggregate exposure is not Forsyth Street, SW., Atlanta, Georgia tolerances for children 1 to 6 years old expected to exceed 100% of the aPAD 30303, (404) 562–8887. (the subgroup with the highest or cPAD and there is a reasonable Written comment may be submitted to exposure) would be 19% of the aPAD. certainty that no harm will result to Mr. Greg Armstrong at the above The chronic dietary exposure analysis infants and children from the aggregate address within 30 days of the date of showed that exposure from the exposure to azoxystrobin residues. proposed new tolerances for children 1 publication.
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Dated: April 19, 2002. additional payments if the total amount ENVIRONMENTAL PROTECTION James T. Miller, of funds in the bankruptcy estate AGENCY Acting Chief, CERCLA Program Services available for distribution to general Branch, Waste Management Division. unsecured creditors other than EPA is [FRL–7203–4] [FR Doc. 02–10733 Filed 4–30–02; 8:45 am] greater than $350,000. EPA will release Clean Water Act Section 303(d): Final BILLING CODE 6560–50–P its liens on Taylor Lumber’s real Agency Action on 45 Total Maximum property and will grant covenants not to Daily Loads (TMDLs) sue to the company and its bankruptcy ENVIRONMENTAL PROTECTION estate. AGENCY: Environmental Protection AGENCY Agency (EPA). Because of the schedule in the [FRL–7204–2] bankruptcy proceeding, the Bankruptcy ACTION: Notice of availability. Court has ordered a fourteen-day period Notice of Proposed Administrative SUMMARY: This notice announces final for public comments. For fourteen Settlement Under Section 122 of the agency action on 45 TMDLs prepared by Comprehensive Environmental calendar days following the date of EPA Region 6 for waters listed in Response, Compensation and Liability publication of this notice, EPA will Louisiana’s Mermentau and Vermilion/ Act, as amended, 42 U.S.C. 9622, accept written comments relating to the Teche river basins, under section 303(d) Taylor Lumber & Treating Superfund proposed Settlement Agreement. EPA’s of the Clean Water Act (CWA). EPA Site response to any comments received will evaluated these waters and prepared the be available for public inspection at the 45 TMDLs in response to the lawsuit AGENCY: Environmental Protection U.S. Environmental Protection Agency, styled Sierra Club, et al. v. Clifford et Agency. 1200 Sixth Ave., Seattle, WA 98101. al., No. 96–0527, (E.D. La.). Documents ACTION: Notice; request for public from the administrative record files for DATES: comment. Comments must be submitted on the final 45 TMDLs, including TMDL or before fourteen days. calculations and responses to SUMMARY: In accordance with the ADDRESSES: comments, may be viewed at Comprehensive Environmental A copy of the proposed settlement may be obtained from www.epa.gov/region6/water/tmdl.htm. Response, Compensation and Liability The administrative record files may be Act of 1980 (CERCLA), 42 U.S.C. 9601 Jennifer Byrne, Assistant Regional Counsel (ORC–158), Office of Regional obtained by calling or writing Ms. et seq., and by order of the United States Caldwell at the above address. Please Bankruptcy Court for the District of Counsel, U.S. EPA Region 10, 1200 Sixth Ave., Seattle, WA 98101. contact Ms. Caldwell to schedule an Oregon, notice is hereby given of a inspection. proposed Settlement Agreement Comments should reference ‘‘Taylor concerning the Taylor Lumber & Lumber & Treating Settlement FOR FURTHER INFORMATION CONTACT: Treating National Priorities List Agreement’’ and ‘‘Docket No. CERCLA– Ellen Caldwell at (214) 665–7513. Superfund Site. The proposed 10–2002–0034’’ and should be SUPPLEMENTARY INFORMATION: In 1996, Settlement Agreement would resolve addressed to Jennifer Byrne at the above two Louisiana environmental groups, claims of the United States under address. the Sierra Club and Louisiana sections 106 and 107(a) of CERCLA, 42 Environmental Action Network FOR FURTHER INFORMATION CONTACT: U.S.C. 9606 and 9607(a), and section (plaintiffs), filed a lawsuit in Federal Jennifer Byrne, Assistant Regional 3008(h) of the Resource Conservation Court against the United States and Recovery Act (RCRA), 42 U.S.C. Counsel (ORC–158), Office of Regional Environmental Protection Agency 6928(h), against Taylor Lumber & Counsel, U.S. EPA Region 10, 1200 (EPA), styled Sierra Club, et al. v. Treating, Inc. Taylor Lumber & Treating Sixth Ave., Seattle, WA 98101; phone: Clifford et al., No. 96–0527, (E.D. La.). was authorized to enter into this (206) 553–0050; fax: (206) 553–0163; e- Among other claims, plaintiffs alleged settlement by an order of the United mail: [email protected]. that EPA failed to establish Louisiana States Bankruptcy Court, District of Dated: April 23, 2002. TMDLs in a timely manner. Oregon, where Taylor Lumber & L. John Iani, EPA Takes Final Agency Action on 45 Treating has filed a Chapter 11 Regional Administrator. TMDLs bankruptcy petition. EPA will receive $500,000 in cash [FR Doc. 02–10732 Filed 4–30–02; 8:45 am] By this notice EPA is taking a final from the proceeds of the sale of the BILLING CODE 6560–50–P agency action on the following 45 Taylor Lumber treating plant, which TMDLs for waters located within the will be placed in a special account for Mermentau and Vermilion/Teche use at the Site. EPA may also receive basins:
Subsegment Waterbody Name Pollutant
050103 ...... Bayou Mallet ...... Ammonia. 050402 ...... Lake Arthur and Lower Mermentau River to Grand Lake ...... Ammonia. 050103 ...... Bayou Mallet ...... Nutrients. 050402 ...... Lake Arthur and Lower Mermentau River to Grand Lake ...... Nutrients. 050701 ...... Grand Lake ...... Nutrients. 050702 ...... Intracoastal Waterway ...... Nutrients. 050901 ...... Mermentau River Basin Coastal Bays and Gulf Waters to State 3-mile Nutrients. limit. 050103 ...... Bayou Mallet ...... Organic enrichment/low DO. 050402 ...... Lake Arthur and Lower Mermentau ...... Organic enrichment/low DO. 050602 ...... Intracoastal Waterway ...... Organic enrichment/low DO. 050603 ...... Bayou Chene—includes Bayou Grand Marais ...... Organic enrichment/low DO.
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Subsegment Waterbody Name Pollutant
050701 ...... Grand Lake ...... Organic enrichment/low DO. 050702 ...... Intracoastal Waterway ...... Organic enrichment/low DO. 050802 ...... Big Constance Lake and Associated Waterbodies (Estuarine) ...... Organic enrichment/low DO. 050901 ...... Mermentau River Basin Coastal Bays and Gulf Waters to State 3-mile Organic enrichment/low DO. limit. 060207 ...... Bayou des Glaises Diversion Channel ...... Nutrients. 060210 ...... Bayou Carron ...... Nutrients. 060601 ...... Charenton Canal ...... Nutrients. 060701 ...... Tete Bayou ...... Nutrients. 060803 ...... Vermilion River ...... Nutrients. 060901 ...... Bayou Petite Anse ...... Nutrients. 060903 ...... Bayou Tigre ...... Nutrients. 060904 ...... Vermilion B890 Basin New Iberia Southern Drainage Canal ...... Nutrients. 060907 ...... Franklin Canal ...... Nutrients. 060909 ...... Lake Peigneur ...... Nutrients. 060911 ...... Vermilion-Teche River Basin—(Dugas Canal) ...... Nutrients. 061103 ...... Freshwater Bayou Canal ...... Nutrients. 060207 ...... Bayou des Glaises Diversion Channel ...... Organic enrichment/low DO. 060209 ...... Irish Ditch/Big Bayou—unnamed Ditch to Irish Ditch ...... Organic enrichment/low DO. 060210 ...... Bayou Carron ...... Organic enrichment/low DO. 060211 ...... West Atchafalaya Borrow Pit Canal ...... Organic enrichment/low DO. 060212 ...... Chatlin Lake Canal ...... Organic enrichment/low DO. 060601 ...... Charenton Canal ...... Organic enrichment/low DO. 060701 ...... Tete Bayou ...... Organic enrichment/low DO. 060703 ...... Bayou du Portage ...... Organic enrichment/low DO. 060803 ...... Vermilion River Cutoff ...... Organic enrichment/low DO. 060901 ...... Bayou Petite Anse ...... Organic enrichment/low DO. 060903 ...... Bayou Tigre ...... Organic enrichment/low DO. 060904 ...... Vermilion River B890 Basin New Iberia Southern Drainage Canal ...... Organic enrichment/low DO. 060907 ...... Franklin Canal ...... Organic enrichment/low DO. 060908 ...... Spanish Lake ...... Organic enrichment/low DO. 060909 ...... Lake Peigneur ...... Organic enrichment/low DO. 060911 ...... Vermilion-Teche River Basin—(Dugas Canal) ...... Organic enrichment/low DO. 061001 ...... West Cote Blanche Bay ...... Organic enrichment/low DO. 061103 ...... Freshwater Bayou Canal ...... Organic enrichment/low DO.
EPA requested the public to provide SUMMARY: Section 515 of the Treasury may also mail or deliver written EPA with any significant data or and General Government comments to Doug Valcour, Chief information that may impact the 45 Appropriations Act for Fiscal Year 2001 Information Officer, Office of Chief TMDLs at Federal Register Notice: (Public Law 106–554; H.R. 5658) Information Officer, Farm Credit Volume 66, Number 199, pages 52403– requires all Federal agencies to issue Administration, 1501 Farm Credit Drive, 52404 (October 15, 2001). The guidelines ensuring and maximizing the McLean, Virginia 22102–5090 or fax comments received and EPA’s response quality, objectivity, utility, and integrity them to (703) 734–5784. You may to comments may be found at of the information (including statistical review copies of all comments we www.epa.gov/region6/water/tmdl.htm. information) that they disseminate. receive in the Office of Chief Dated: April 22, 2002. Agencies are required to issue their Information Officer, Farm Credit guidelines within 1 year after the Office Administration. Sam Becker, of Management and Budget (OMB) Acting Director, Water Quality Protection issued procedural guidance to them. See FOR FURTHER INFORMATION CONTACT: Division, Region 6. 66 FR 49718, September 28, 2001. Cheryl Thomas, Director, Information [FR Doc. 02–10631 Filed 4–30–02; 8:45 am] OMB’s final guidance requires agencies Management Division, Office of Chief BILLING CODE 6560–50–P to post their draft guidelines on their Information Officer, Farm Credit Web sites by May 1, 2002. The agencies Administration, McLean, VA 22102– are also required to publish a notice of 5090, (703) 883–4119, TDD (703) 883– the availability of their draft guidelines 4444; or Doug Valcour, Chief FARM CREDIT ADMINISTRATION in the Federal Register. See 67 FR 369, Information Officer, Office of Chief January 3, 2002. The Farm Credit Information Officer, Farm Credit Proposed Guidelines for Ensuring and Administration (FCA) is hereby Administration, 1501 Farm Credit Drive, Maximizing the Quality, Objectivity, publishing notice of the availability of McLean, Virginia 22102–5090, (703) Utility, and Integrity of Information its draft guidelines on its Web site at 883–4166, TDD (703) 883–4444. Disseminated by the Farm Credit http://www.fca.gov as of May 1, 2002. Administration Dated: April 26, 2002. DATES: Please send your comments to Kelly Mikel Williams, AGENCY: Farm Credit Administration. FCA by May 31, 2002. ADDRESSES: You may send comments on Secretary, Farm Credit Administration. ACTION: Notice of availability of [FR Doc. 02–10721 Filed 4–30–02; 8:45 am] proposed guidelines. the draft guidelines by electronic mail to Doug Valcour at [email protected]. You BILLING CODE 6705–01–P
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FEDERAL COMMUNICATIONS DATES: The Commission must receive before it is disseminated to the public, COMMISSION written comments on or before June 28, and the procedures by which an affected 2002. person may request correction of [DA 01–2338] ADDRESSES: Comments must be written information disseminated by the FDIC Telecommunications Services and should be addressed to Dr. Karen that does not comply with the Between The United States and Cuba Wheeless, Data Quality Guideline information quality guidelines. The Comments, Room 1–A807, Office of FDIC will consider comments in AGENCY: Federal Communications Managing Director, Federal developing its final information quality Commission. Communications Commission, 445 12th guidelines. ACTION: Notice. Street, SW., Washington, DC 20554 or to DATES: Comments are due by June 1, [email protected]. SUMMARY: On October 18, 2001 the 2002. FOR FURTHER INFORMATION CONTACT: Dr. Commission authorized Sprint ADDRESSES: Written comments should Communications Company, L.P. (Sprint) Karen Wheeless, Office of Managing be addressed to Robert E. Feldman, to lease and operate additional satellite Director, 202–418–2910, or by e-mail to Executive Secretary, Attention: facilities to upgrade an existing private [email protected]. Comments/OES, Federal Deposit line circuit from 2 Mbps to 6 Mbps SUPPLEMENTARY INFORMATION: Section Insurance Corporation, 550 17th Street, between the United States and Cuba via 515 of the Treasury and General NW, Washington, DC 20429. Comments an INTELSAT AOR satellite. Sprint is Government Appropriations Act for may be hand delivered to the guard currently authorized by the Commission Fiscal Year 2001 (Public Law 106–554) station at the rear of the 550 17th Street to provide service directly to Cuba. The directs OMB to issue government-wide Building (located on F Street) on Commission has authorized Sprint to guidelines that ‘‘provide policy and business days between 7 a.m. and 5 p.m. provide service between the United procedural guidance to Federal agencies Send facsimile transmissions to fax States and Cuba in accordance with the for ensuring and maximizing the number (202) 898–3838. Comments may provisions of the Cuban Democracy Act. quality, objectivity, utility and integrity be submitted electronically to Under the guidelines established by the of information (including statistical [email protected]. Comments may be Department of State, Sprint must submit information) disseminated by Federal inspected and photocopied in the FDIC reports indicating the numbers of agencies.’’ The OMB guidelines require Public Information Center, Room 100, circuits activated by facility, on or each agency to prepare a draft report 801 17th Street, NW., Washington, DC before June 30th, and December 31st of providing the agency’s information 20429, between 9 a.m. and 4:30 p.m. on each year, and on the one-year quality guidelines. Each agency further business days. is required to publish a notice of anniversary of this notification in the FOR FURTHER INFORMATION CONTACT: availability of this draft report in the Federal Register. Patricia Klear, Special Assistant to the Federal Register and to post this report DATES: Effective October 5, 2001. Director, Division of Information on its Web site by May 1, 2002, to FOR FURTHER INFORMATION CONTACT: Resources Management, 3501 Fairfax provide an opportunity for public Claudia Fox, Deputy Chief, Policy Drive, Room 7083, Arlington, VA 22226 comment. The Commission will post its Division, International Bureau, (202) [email protected]. 418–1527. draft Information Quality Guidelines on its Web site at (www.fcc.gov/omd/ SUPPLEMENTARY INFORMATION: Federal Communications Commission. dataquality) and encourages public Authority: Section 515 of the Treasury and James Ball, comment on the report. General Government Appropriations Act for Chief, Policy Division, International Bureau. Fiscal Year 2001 (Pub. L. 106–554; 114 Stat. Federal Communications Commission. [FR Doc. 02–10655 Filed 4–30–02; 8:45 am] 2763). Marlene H. Dortch, BILLING CODE 6712–01–P Dated: April 23, 2002. Secretary. Federal Deposit Insurance Corporation. [FR Doc. 02–10585 Filed 4–30–02; 8:45 am] Robert E. Feldman, FEDERAL COMMUNICATIONS BILLING CODE 6712–01–P COMMISSION Executive Secretary. [FR Doc. 02–10430 Filed 4–30–02; 8:45 am] Guidelines for Ensuring and FEDERAL DEPOSIT INSURANCE BILLING CODE 6714–01–P Maximizing the Quality, Objectivity, CORPORATION Utility and Integrity of Disseminated Information FDIC Section 515 Information Quality Guidelines FEDERAL MARITIME COMMISSION AGENCY: Federal Communications Commission. AGENCY: Federal Deposit Insurance Notice of Agreement(s) Filed ACTION: Notice; solicitation of Corporation. comments. ACTION: Notice of availability of The Commission hereby gives notice guidelines and request for comments. of the filing of the following SUMMARY: The Federal Communications agreement(s) under the Shipping Act of Commission (Commission) has made SUMMARY: The Federal Deposit 1984. Interested parties can review or available its Draft Information Quality Insurance Corporation (FDIC) is seeking obtain copies of agreements at the Guidelines pursuant to the requirements comments on its draft Section 515 Washington, DC offices of the of the Office of Management and Information Quality Guidelines, which Commission, 800 North Capitol Street, Budget’s (OMB’s) Guidelines for are available on the FDIC Web site: NW., Room 940. Interested parties may Ensuring and Maximizing the Quality, http://www.fdic.gov/regulations/laws/ submit comments on an agreement to Objectivity, Utility and Integrity of publiccomments/index.html. The the Secretary, Federal Maritime Information Disseminated by Federal Information Quality Guidelines describe Commission, Washington, DC 20573, Agencies, 67 FR 8452, February 22, the FDIC’s procedures for reviewing and within 10 days of the date this notice 2002. substantiating the quality of information appears in the Federal Register.
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Agreement Nos.: 011560–005, Synopsis: The proposed agreement Date Revoked: April 5, 2002. 011785–002. authorizes a ‘‘bridge’’ agreement Reason: Failed to maintain a valid Title: The Transatlantic Bridge between the Evergreen/Lloyd Triestino/ bond. Agreement; COSCON/KL/YMUK Asia/ Hatsu Marine Alliance Agreement and License Number: 7802N. U.S. East and Gulf Coast/Mediterranean the Transpacific Stabilization Name: Orient Star Trading & Vessel Sharing Agreement. Agreement (‘‘TSA’’). The Agreement Shipping, Inc. Parties: COSCO Container Lines will permit Lloyd Triestino and Hatsu, Address: 38–01 69th Street, Company, Limited, Kawasaki Kisen as well as their affiliate Evergreen, to Woodside, NY 11377. Kaisha, Ltd., Yangming Marine discuss, share information, and reach Date Revoked: April 3, 2002. Transport Corporation, Yangming voluntary agreements with the TSA and Reason: Failed to maintain a valid (U.K.), Ltd. its members. bond. Synopsis: The proposed agreement modifications add a provision relating By Order of the Federal Maritime License Number: 16267N. to inland rates and land-side operations Commission. Name: Trident Transport Dated: April 26, 2002. to conform with European Union law. International, Inc. The parties request expedited review. Bryant L. VanBrakle, Address: 215 W. Diehl Road, Secretary. Naperville, IL 60563. Agreement No.: 011561–005, 011562– [FR Doc. 02–10737 Filed 4–30–02; 8:45 am] Date Revoked: April 12, 2002. 006. Reason: Failed to maintain a valid Title: COSCO/KL Transatlantic Vessel BILLING CODE 6730–01–P bond. Sharing Agreement; KL/YM Transatlantic Vessel Sharing Agreement. Sandra L. Kusumoto, FEDERAL MARITIME COMMISSION Parties: COSCO Container Lines Director, Bureau of Consumer Complaints Company, Limited, Kawasaki Kisen Ocean Transportation Intermediary and Licensing. Kaisha, Ltd., Yangming Marine License Revocations [FR Doc. 02–10738 Filed 4–30–02; 8:45 am] Transport Corporation. BILLING CODE 6730–01–P Synopsis: The proposed agreement The Federal Maritime Commission modifications authorize COSCO to sub- hereby gives notice that the following charter slots to Zim Israel Navigation Ocean Transportation Intermediary FEDERAL RESERVE SYSTEM Company, Ltd. and adds a provision licenses have been revoked pursuant to relating to inland rates and land-side section 19 of the Shipping Act of 1984 [Docket No. R–1121] operations to conform with European (46 U.S.C. app. 1718) and the Union law. The parties request regulations of the Commission Draft Guidance for Information expedited review. pertaining to the licensing of Ocean Dissemination Quality Guidelines; Agreement No.: 011733–004. Transportation Intermediaries, effective Availability Title: Common Ocean Carrier Platform on the corresponding date shown below: AGENCY: Board of Governors of the Agreement. License Number: 14289N. Federal Reserve System. Parties: A.P. Moller-Maersk Sealand, Name: BCR Freight (USA) Inc. Alianca Navegacao e Logistica Ltda., Address: 161 W. Victoria Street, Suite ACTION: Notice. CMA CGM, S.A., Hamburg-Sud, Hapag- 240, Long Beach, CA 90805. SUMMARY: The Federal Reserve Board Lloyd Container Linie GmbH, Date Revoked: April 12, 2002. (FRB) is announcing the availability of Reason: Failed to maintain a valid Mediterranean Shipping Company, S.A., draft guidelines for the public entitled bond. Nippon Yusen Kaisha, P&O Nedlloyd ‘‘Ensuring and Maximizing the Quality, Limited, Safmarine Container Lines License Number: 4153N. Objectivity, Utility, and Integrity of N.V., United Arab Shipping Company Name: Coda International, Inc. Information Disseminated by the (S.A.G.). Address: 239 New Road, Bldg. #A, Federal Reserve.’’ The guidelines can be Synopsis: The proposed agreement Rm. 103, Parsippany, NJ 07054. modification adds Nippon Yusen Kaisha Date Revoked: March 31, 2002. found on the Federal Reserve Board’s as a non-shareholder party to the Reason: Failed to maintain a valid public web site, agreement. bond. www.FederalReserve.gov. The document is intended to provide guidance to the Agreement No.: 011799. License Number: 14580N. public on the procedures the agency has Title: The Evergreen/Lloyd Triestino/ Name: Euro-America Container Line in place for reviewing and Hatsu Marine Alliance/TSA Bridging Inc. substantiating the quality of the Agreement. Address: 12981 Ramona Blvd., Suite Parties: Evergreen Marine Corp. information that is disseminated. The A, Irwindale, CA 91706. guidelines also provide a mechanism for (Taiwan) Ltd., Lloyd Triestino Di Date Revoked: April 4, 2002. affected individuals to provide Navigazione S.P.A., Hatsu Marine Reason: Failed to maintain a valid complaints to the agency. The Federal Limited, American President Lines, Ltd. bond. and APL Co. PTE Ltd.(operating as a Reserve’s guidelines are being issued License Number: 10614N. pursuant to the Treasury and General single carrier), A.P. Moller-Maersk Name: Five Oceans Cargo Lines, Ltd. Government Appropriations Act for Sealand, CMA CGM S.A., Cosco Address: 836 Five Forks Road, Fiscal Year 2001 (Public Law 106–554, Container Lines Ltd., Hanjin Shipping Virginia Beach, VA 23455. Company, Ltd., Hapag-Lloyd Container Date Revoked: April 12, 2002. Section 515). Linie GmbH, Hyundai Merchant Marine Reason: Failed to maintain a valid DATES: Submit written or electronic Co., Ltd., Kawasaki Kisen Kaisha, Ltd., bond. comments on the draft guidance by May Mitsui O.S.K. Lines, Ltd., Nippon Yusen License Number: 6347N. 31, 2002. Kaisha, Orient Overseas Container Line Name: Josefina Seberger, Inc. dba ADDRESSES: Comments should refer to Limited, P&O Nedlloyd B.V., P&O Serve Freight Systems. Docket No. R–1121 and should be Nedlloyd Limited, Yangming Marine Address: 5123 Maplewood Avenue, mailed to Ms. Jennifer J. Johnson, Transport Corp. Los Angeles, CA 90004. Secretary, Board of Governors of the
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Federal Reserve System, 20th Street and DATES: Comments must be submitted on mechanisms developed by the agency to Constitution Avenue, NW., Washington, or before June 1, 2002. allow affected persons to seek and DC 20551. However, because paper mail ADDRESSES: For comments in paper obtain appropriate correction of in the Washington area and at the Board form: Secretary, Federal Trade information maintained and of Governors is subject to delay, please Commission, Room H–159, 600 disseminated by the agency that does consider submitting your comments by Pennsylvania Ave., NW., Washington, not comply with the OMB or the agency e-mail to DC 20580. For comments in electronic guidelines. The agency is required to [email protected], or form: [email protected]. Provide electronic publish a notice of availability of its faxing them to the Office of the attachments, if any, in ASCII, draft report in the Federal Register and Secretary at 202–452–3819 or 202–452– WordPerfect, or Microsoft Word format. to post the report on the Web site to 3102. Comments addressed to Ms. Please caption all comments: provide an opportunity for public Johnson may also be delivered to the ‘‘Comment—Draft 515 Guidelines.’’ comment. After consideration of such Board’s mail facility in the West Pursuant to Commission Rule 4.2(d), 16 comment and appropriate revision, if Courtyard between 8:45 a.m. and 5:15 CFR 4.2(d), if your comment includes any, the agency must submit the report p.m., located on 21st Street between confidential materials or other private or to OMB no later than July 1, 2002. After Constitution Avenue and C Street, NW. sensitive information, please submit comments, if any, are received from Members of the public may inspect your comment in paper form, label the OMB, the agency must publish a notice comments in Room MP–500 between 9 first page ‘‘confidential,’’ and also of the availability of the report in its a.m. and 5 p.m. on weekdays pursuant identify the information you consider to final form in the Federal Register and to 261.12, except as provided in 261.14, be confidential, private, or otherwise post the report on its Web site no later of the Board’s Rules Regarding sensitive. Except for portions legally than October 1, 2002, which is the date Availability of Information, 12 CFR exempt from disclosure, comments may the agency’s guidelines are to become 261.12 and 261.14. be made part of the public record or effective. The agency is required to A copy of the comments may also be otherwise disclosed in accordance with submit further reports, on an annual submitted to the OMB desk officer for applicable law, rules, and Commission the Board: Alexander T. Hunt, Office of fiscal-year basis, to OMB, by January 1 policy. See 16 CFR 4.9(b); www.ftc.gov/ of each following year, regarding the Information and Regulatory Affairs, ftc/privacy.htm. As discussed below, the Office of Management and Budget, New number and nature of complaints FTC’s draft section 515 guidelines are received regarding agency compliance Executive Office Building, Room 3208, being posted on the Commission’s Web Washington, DC 20503. with the OMB guidelines and how such site www.ftc.gov. Requests for paper complaints were resolved. The first FOR FURTHER INFORMATION CONTACT: copies of the guidelines should be annual report is due January 1, 2004. Mary M. West, Federal Reserve Board addressed to the Public Reference Clearance Officer (202–452–3829), Branch, FTC, 600 Pennsylvania Ave. In accordance with the above Division of Research and Statistics, NW., Washington, DC, 20580, (202) requirements, the FTC is publishing this Board of Governors of the Federal 326–2222. notice of the availability of its draft Reserve System, Washington, DC 20551. report pursuant to section 515 and the FOR FURTHER INFORMATION CONTACT: Alex Telecommunications Device for the Deaf OMB Guidelines. The FTC’s report, Tang, (202) 326–2447, or Gary (TDD) users may contact 202–263–4869. which includes the draft information Greenfield, (202) 326–2753, Attorneys, quality guidelines and draft Board of Governors of the Federal Reserve Office of the General Counsel, FTC; administrative mechanism for resolving System, April 25, 2002. Daniel Danckaert, (202) 326–2222, section 515 requests for correction of Margaret McCloskey Shanks, Office of the Chief Information Officer, information dissemination products, is Assistant Secretary of the Board. FTC. being posed on the FTC’s Web site, [FR Doc. 02–10678 Filed 4–30–02; 8:45 am] SUPPLEMENTARY INFORMATION: Section www.ftc.gov. The FTC seeks public BILLING CODE 6210–01–P 515 of the Treasury and General comment on the guidelines and Government Appropriations Act for administrative mechanism until June 1, Fiscal Year 2001, Public Law 106–554, 2002. The FTC will review the FEDERAL TRADE COMMISSION and implementing guidance issued by comments and make appropriate the Office of Management and Budget revisions, if any, before submitting the Guidelines for Ensuring and (OMB) require agencies to develop and report to OMB by July 1, 2002, as Maximizing the Quality, Objectivity, issue guidelines for ensuring and required by section 515 and the OMB Utility, and Integrity of Information maximizing the quality, objectivity, Guidelines. Disseminated by the Federal Trade utility, and integrity of information that Commission they disseminate to the public. See 67 Paperwork Reduction Act AGENCY: Federal Trade Commission FR 8452 (Feb. 22, 2002) (OMB (FTC). Guidelines republished in their The administrative mechanism for affected persons seeking correction of ACTION: Notice of availability of draft entirety). FTC information dissemination guidelines; request for public comment. Each agency is required to prepare and make available to the public a draft products is not an agency information SUMMARY: The FTC is making available report, providing the agency’s collection activity that requires OMB its draft guidelines to implement section information quality guidelines and review and approval under the 515 of the Treasury and General explaining how the guidelines will Paperwork Reduction Act, 44 U.S.C. Government Appropriations Act for achieve information quality, utility, 3501–3520. See 5 CFR 1320.3(h)(1). Fiscal Year 2001 and government-wide objectivity, and integrity. (In a notice By direction of the Commission. guidance issued by the Office of published on March 4, 2002, OMB Management and Budget for ensuring extended the original deadline for this Donald S. Clark, and maximizing the quality, objectivity, draft report of April 1, 2002, to May 1, Secretary. utility, and integrity of information 2002. See 67 FR 9797.) The report must [FR Doc. 02–10690 Filed 4–30–02; 8:45 am] disseminated by Federal agencies. also detail the administrative BILLING CODE 6750–01–M
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DEPARTMENT OF HEALTH AND information it disseminates to the 1. Office of the Assistant Secretary for HUMAN SERVICES public, including administrative Planning and Evaluation mechanisms allowing affected persons 2. Office of Public Health and Science Draft Report on Guidelines for to seek and obtain, where appropriate, 3. Office of the Inspector General Ensuring and Maximizing the Quality, correction of information disseminated Comments Invited Objectivity, Utility and Integrity of by the agency that does not comply with Comments on the draft report are Information Disseminated by HHS the guidelines. The agency’s guidelines invited and must be submitted in Agencies will apply to information that the writing to the office and email addresses agency first disseminates on or after AGENCY: Department of Health and specified. Because of staff and resource October 1, 2002. Human Services. limitations, we cannot respond to The OMB Guidelines further direct individual comments. ACTION: Notice. federal agencies to prepare a draft Dated: April 24, 2002. SUMMARY: This notice announces the report, no later than May 1, 2002, William Raub, availability for comment of the U.S. providing the agency’s information Department of Health and Human quality guidelines and describing the Deputy Assistant Secretary for Planning and Evaluation. Services Draft Agency Guidelines for administrative mechanisms developed Ensuring the Quality of Information by the agency to allow affected persons [FR Doc. 02–10553 Filed 4–30–02; 8:45 am] Disseminated to the Public. The HHS to seek and obtain appropriate BILLING CODE 4151–05–P Draft Agency Guidelines have been correction of information. The agency developed pursuant to the government- also is directed to publish a notice of the availability of this draft report in the DEPARTMENT OF HEALTH AND wide OMB Guidelines for Information HUMAN SERVICES Quality published on January 3, 2002. Federal Register, and post this report on Comments are invited on the HHS draft the agency’s Web site to provide an opportunity for public comment. Centers for Disease Control And guidelines, which are now available for Prevention review and comment at the following HHS Draft Agency Guidelines [60Day–02–47] HHS Web site: http://www.hhs.gov/ In accordance with the requirements infoquality of the OMB Guidelines, the HHS draft Proposed Data Collections Submitted DATES: Comments on the HHS draft report on agency guidelines is now for Public Comment and agency guidelines must be submitted by available for review and comment at the Recommendations 5 p.m., May 31, 2002. following HHS Web site: http:// In compliance with the requirement ADDRESSES: Please submit written www.hhs.gov/infoquality. of Section 3506 (c)(2)(A) of the comments to Director, Division of Data Within HHS, we have developed draft Paperwork reduction Act of 1995, the Policy, Office of the Assistant Secretary guidelines for each of the HHS Center for Disease Control and for Planning and Evaluation, Attn: Operating Agencies and Staff Offices Prevention is providing opportunity for Information Quality Comments, U.S. that disseminate substantive public comment on proposed data Department of Health and Human information subject to the OMB collection projects. To request more Services, Room 440D, Hubert H. guidelines. Our HHS draft report information on the proposed projects or Humphrey Building, 200 Independence includes an HHS overview and to obtain a copy of the data collection Avenue SW., Washington, DC 20201. summary followed by agency specific plans and instruments, call the CDC Comments also may be e-mailed to information quality guidelines. For each Reports Clearance Officer on (404) 498– [email protected]. Single copies operating agency identified below, our draft report describes the following 1210. of the draft report are also available by Comments are invited on: (a) Whether contacting the Division of Data Policy at information—the mission of the agency, the scope and applicability of the the proposed collection of information (202) 690–7100. is necessary for the proper performance FOR FURTHER INFORMATION CONTACT: guidelines within the agency, the types of information that the agency of the functions of the agency, including James Scanlon, Division of Data Policy, whether the information shall have Office of the Assistant Secretary for disseminates to the public, the types of dissemination methods employed, the practical utility; (b) the accuracy of the Planning and Evaluation, U.S. DHHS, agency’s estimate of the burden of the Telephone (202) 690–7100. agency quality assurance procedures, and the agency administrative proposed collection of information; (c) SUPPLEMENTARY INFORMATION: On mechanisms to allow affected persons to ways to enhance the quality, utility, and January 3, 2002, OMB issued final seek correction of agency information. clarity of the information to be guidelines to federal agencies that collected; and (d) ways to minimize the implement Section 515 of the Treasury A. Administration for Children and Families burden of the collection of information and General Government B. Administration on Aging on respondents, including through the C. Agency for Healthcare Research and Appropriations Act for Fiscal Year 2001 Quality use of automated collection techniques (Pub. L. 106–554). Section 515 directs D. Centers for Disease Control and for other forms of information OMB to issue government-wide Prevention/Agency for Toxic Substances technology. Send comments to Seleda guidelines that provide policy and & Disease Registry M. Perryman, CDC Assistant Reports procedural guidance to federal agencies E. Centers for Medicare and Medicaid Clearance Officer, 1600 Clifton Road, for ensuring and maximizing the Services MS–D24, Atlanta, GA 30333. Written quality, objectivity, utility and integrity F. Food and Drug Administration comments should be received within 60 of information (including statistical G. Health Resources and Services days of this notice. Administration information) disseminated by federal H. Indian Health service Proposed Projects: PHS Supplements agencies. The OMB guidelines in turn I. National Institutes of Health to the Application for Federal direct each federal agency to issue its J. Substance Abuse and Mental Health Assistance SF–424 (0920–0428)— own guidelines for ensuring the quality, Services Administration Extension—Office of the Director (OD), objectivity, utility and integrity of the K. Office of the Secretary Centers for Disease Control and
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Prevention (CDC) is requesting a three- non-profit and for-profit organizations issuance of grant awards. The PHSIS year extension for continued use of the when applying for financial assistance Third Party Notification Form is used to Supplements to the Request for Federal from PHS grant programs. The Checklist inform State and local health agencies of Assistance Application (SF–424). The assists applicants to ensure that they community-based proposals submitted Checklist, Program Narrative, and the have included all required information by non-governmental applicants for Public Health System Impact Statement necessary to process the application. Federal funding. There is no cost to the (third party notification) (PHSIS) are a The Checklist data helps to reduce the respondent. part of the standard application for State time required to process and review and local governments and for private grant applications, expediting the
Number of Avg. burden/ Respondents Number of re- responses/ response Total burden spondents respondent (in hrs.) (in hrs.)
State and local health departments; non-profit and for-profit organizations ... 7,457 1 5.7255 42,695
Total ...... 42,695
Dated: April 25, 2002. comments should be received within 30 divided into four groups of 100 each: Nancy Cheal, days of this notice. three experimental groups and one Acting Associate Director for Policy, Planning Proposed Project: Preventing Hearing control group. Each of the three and Evaluation Centers for Disease Control Loss Among Construction Workers— experimental groups will participate in and Prevention (CDC). New—National Institute for one of three methods for delivering [FR Doc. 02–10682 Filed 4–30–02; 8:45 am] Occupational Safety and Health OSHA-required hearing loss prevention BILLING CODE 4163–18–P (NIOSH), Centers for Disease Control training (29 CFR, subpart D, 1926.52). and Prevention (CDC). The mission of The 300 participants in the the National Institute for Occupational experimental groups will be given one DEPARTMENT OF HEALTH AND Safety and Health (NIOSH) is to survey prior to training and a second HUMAN SERVICES promote safety and health at work for all survey (using an equivalent form) after training. The control group will not Centers for Disease Control and people through research and prevention. Prevention Using Health Belief/ Promotion models receive the experimental training and and stages of change theory (Prochaska’s will simply be given one survey in [30DAY–26–02] Transtheoretical Model), NIOSH has conjunction with existing apprentice collaborated with the United training activities. Half (50) of the Agency Forms Undergoing Paperwork Brotherhood of Carpenters (UBC) to participants in the control group will be Reduction Act Review develop a comprehensive hearing loss administered one form, and the other The Centers for Disease Control and prevention program targeted specifically half (50) will be given the equivalent Prevention (CDC) publishes a list of for carpenter apprentices. As part of the form. This process will be repeated one information collection requests under impact and evaluation component of and two years after the initial survey review by the Office of Management and this project, a survey will be administration activities. Data collected Budget (OMB) in compliance with the administered to assess carpenter in this investigation will enable NIOSH Paperwork Reduction Act (44 U.S.C. apprentices’ hearing health attitudes, to better evaluate the effectiveness of the Chapter 35). To request a copy of these beliefs, and behavioral intentions before hearing loss prevention program in requests, call the CDC Reports Clearance and after they receive the training educating and motivating these workers Officer at (404) 498–1210. Send written program and at a one-year follow-up to actively protect their hearing well comments to CDC, Desk Officer, Human interval. The survey was developed and before they suffer permanent noise- Resources and Housing Branch, New validated by NIOSH in collaboration induced hearing loss. The annual Executive Office Building, Room 10235, with university partners and the UBC. burden for this data collection is 140 Washington, DC 20503. Written This study involves 400 carpenters hours.
Responses Form name Number of per Hours per respondents respondent response
Form A ...... 350 1 12/60 Form B ...... 350 1 12/60
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Dated: April 25, 2002. (Rogers, 1985), which suggests that prevent syphilis based on the (CPOL) Nancy E. Cheal, changes can be rapidly disseminated model and using an experimental Acting Associate Director for Policy, Planning and subsequently adopted by design. and Evaluation Centers for Disease Control identifying, enlisting, and training (2) To target the CPOL intervention and Prevention. opinion leaders within the affected for heterosexually active adults at risk [FR Doc. 02–10683 Filed 4–30–02; 8:45 am] community to endorse the desired for syphilis infection and living in BILLING CODE 4163–18–P behaviors. The Community Opinion counties identified as HMAs. Leaders function as ‘‘agents of change’’ (3) To evaluate the effectiveness of the by disseminating and personally CPOL intervention by identifying DEPARTMENT OF HEALTH AND endorsing health promotion (e.g. changes in attitudes, beliefs, health care HUMAN SERVICES syphilis prevention) messages. They seeking, sexual risk behaviors, and utilize their ability to influence other syphilis incidence in the intervention Centers for Disease Control and community members and facilitate community, as compared to a similar Prevention changes in social norms and behaviors community that does not receive the [Program Announcement 02044] by sharing factual information, CPOL intervention. expressing their concern for syphilis B. Eligible Applicants A Community-Based Intervention with prevention, and endorsing and Opinion Leaders to Achieve Syphilis modeling effective behavior change Applications may be submitted by Elimination; Notice of Availability of strategies within their social and sexual public and private nonprofit Funds networks. organizations and by governments and It has been empirically determined their agencies including public and A. Purpose that the CPOL model is effective in nonprofit faith-based organizations; that The Centers for Disease Control and reducing HIV-related sexual risk of men is, universities, colleges, research Prevention (CDC) announces the who have sex with men (MSM) in U.S. institutions, hospitals, other public and availability of fiscal year FY 2002 funds cities (e.g. Kelly, St. Lawrence, private nonprofit organizations, State for a cooperative agreement research Stevenson, Hauth, et al., 1992; Kelly, and local governments or their bona fide program for a Community-Based Murphy, Sikkema, McAuliffe et al., agents, including the District of Intervention with Popular Opinion 1997), and ethnic minority women who Columbia, the Commonwealth of Puerto Leaders (CPOL) to Achieve Syphilis lived in urban low-income housing Rico, and federally recognized Indian Elimination. This program addresses the (Sikkema, Kelly, Winett, Solomon et al., Tribal Governments, Indian Tribes, or ‘‘Healthy People 2010’’ objectives for 2000). The Popular Opinion Leader Indian Tribal Organizations. Sexually Transmitted Diseases (STDs). model is also included in the Note: Title 2 of the United State Code This project also addresses the ‘‘Compendium of HIV Prevention Section 1611 states that an organization ‘‘National Plan to Eliminate Syphilis Interventions with Evidence of described in section 501(c)(4) of the Internal from the United States’’ pertaining to Effectiveness.’’ For a copy of the Revenue Code that engages in lobbying the strengthening of community ‘‘Compendium of HIV Interventions,’’ activities is not eligible to receive Federal involvement and partnerships and visit the Internet site: http:// funds constituting an award, grant, or loan. enhanced health promotion. For a copy www.cdcnpin.org/Reports/ Other eligibility criterias include the of the ‘‘National Plan to Eliminate HIVcompendium.pdf. Although the following: Syphilis from the United States,’’ visit CPOL model is effective in reducing (1) Applicants must use the CPOL the Internet site: http://www.cdc.gov/ HIV risk, its efficacy in preventing STDs model as a basis for the community stopsyphillis. other than HIV has never been level intervention. It is intended that this research empirically determined. (2) Applicants must target male and program will be conducted in The goal of this research project is to female heterosexually active adults at- communities that are located in high evaluate the utility of the CPOL model risk for syphilis infection. morbidity areas (HMAs) for syphilis as in preventing primary and secondary (3) Applicants must implement the defined by the CDC on Attachment A. syphilis in rural and urban HMA research program in two rural or two Funding is available for two communities. It is required that the urban communities within project areas demonstration sites for up to three proposed research program be that are defined as (HMAs) for syphilis years. implemented in communities located in and received 2002 funding for syphilis The goal of this research program is HMAs for syphilis. Applications should elimination (see Attachment A). to implement and evaluate a community target heterosexually active adults at (4) The two urban or two rural level intervention to prevent risk for syphilis due to sexual risk communities must be a matched pair, transmission of primary and secondary behaviors. It is also required that the similar in population and demographic syphilis in rural and urban communities program include collaboration between characteristics. The matched pair by training key community members the local health department, should also be located in the same state. (i.e. opinion leaders) within the affected community-based organizations (CBOs) One community must serve as the study communities to promote risk reduction that work directly with the at-risk community and have the interventions and health seeking behaviors. The population, and university researchers implemented immediately, while the intervention that will be evaluated in experienced in designing, matched community must serve as the this demonstration project is the implementing, and evaluating control and have the interventions Popular Opinion Leader (POL) model community-level interventions for STD/ offered after the completion of the (Kelly, St. Lawrence, Stevenson, et al, HIV prevention. research program. 1992). For the purposes of this (5) The locations of the communities, announcement and research program, Overall Study Objectives within each matched pair of urban or POL will be referred to as the The overall objectives for this rural sites, must be such that activities Community Popular Opinion Leader research program are: implemented in one community are (CPOL) model. The CPOL model is (1) To design and implement a unlikely to have any impact in the based on Diffusion of Innovation Theory community-level intervention to other.
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C. Availability of Funds syphilis morbidity areas. (4) Experience involvement is anticipated about the Approximately $400,000 is available implementing and managing theory- scientific and/or technical management in FY 2002 to fund up to two awards. driven and community based of this research and or technical It is expected that the average award intervention projects. (5) Evaluation management of this research during its will be $200,000. It is expected that one expertise. performance. With this in mind, CDC application proposing two matched c. Have in place or establish will: urban sites and one application collaborative relationships with a. Provide up-to-date scientific proposing two matched rural sites will appropriate partners to accomplish information, technical assistance, and be awarded. It is expected that awards project goals. Partnerships must include guidance in the design and conduct of will be made on or before September 30, health departments, university based the research. 2002 and will be made for a 12 month researchers and community based b. Provide technical assistance to budget period within a project period of organizations that serve and are able to awardees in developing and collecting a up to three years. Funding estimates access and work with at-risk common set of core variables to enable may change depending upon the heterosexually active men and women comparison between project areas. availability of funds. in the targeted communities. Collaborative activities may include Continuation awards within an d. Collaborate with other recipients in assistance on the development of approved project period will be made developing and collecting a common set common data collection instruments on the basis of satisfactory progress as of core variables to permit systematic and developing a centralized system for evidenced by required reports and the comparisons. data management for the core set of data availability of funds. e. Collaborate with other recipients elements collected by each funded and CDC during the development, project area. 1. Use of Funds implementation and evaluation of the c. Assist in the development of a project. Funds are awarded for a specifically common research protocol for annual f. Collaborate with other recipients defined purpose and may not be used IRB review by all cooperating and CDC to disseminate interim reports for any other purpose or program. Funds institutions participating in the research of research activities to regional, state may be used to support personnel and project. The CDC IRB will review and to purchase equipment, supplies and and local partners. g. Submit and obtain approval of the approve the protocol initially and on at services directly related to project least an annual basis until the research activities. Funds may not be used to study protocols by the recipient’s local institutional review board(s) and the project, including analyses, is supplant state or local health completed. department funds, provide direct CDC Institutional Review Board (IRB). d. Assist in ensuring human subjects medical care (e.g., purchase of Activities must be conducted in assurances are in place as needed. pharmaceuticals) or prevention case compliance with Protection of Human management. Subjects (45 CFR part 46). e. Provide technical assistance on data h. Establish procedures to maintain collection methods, sampling 2. Funding Preferences the rights and confidentiality of all methodology, intervention delivery, and Funds may be awarded in such a way study participants, including securing quality assurance. as to achieve geographic distribution, any assurances necessary to conduct f. Assist in analysis and dissemination and representation of counties affected research involving human subjects. of results, including the preparation of by high syphilis morbidity. i. Conduct local data management manuscripts, as needed. activities including data collection and g. Monitor and evaluate the scientific D. Program Requirements management. Data collection may and operational accomplishments of the In conducting activities to achieve the include street intercept interviews, project. This will be accomplished purpose of this program, the recipient focused individual interviews, role play through periodic site visits, telephone will be responsible for the activities assessment, paper and pencil measures, calls, electronic communication, under 1. Recipient Activities, and CDC and process measures. Management of technical reports and interim data will be responsible for activities listed the data will include security of data, analyses. under 2. CDC Activities. assurance of participant confidentially, h. Convene meetings of recipients for data entry, and timely forwarding of 1. Recipient Activities the exchange of information. data to the CDC project officer. a. Design and conduct a research j. Analyze and disseminate results E. Content program to address the study objectives through reports, presentations, and Letter of Intent (LOI) in Section A by implementing and publications. evaluating a community-level k. Applicants are required to provide A Letter of Intent (LOI) is required for intervention to prevent syphilis using Measures of Effectiveness that will this research program. The narrative the er (CPOL) model and targeting demonstrate the accomplishment of the should be no more than three single heterosexually active adults at risk for various identified objectives of the spaced pages, printed on one side, with syphilis infection in urban or rural grant. Measures must be objective/ one-inch margins, and unreduced font. HMA communities. quantitative and must measure the Your LOI will be used to prepare for the b. Identify appropriate personnel for intended outcome. These Measures of special emphasis panel (SEP) that will the project. Skills and experience of Effectiveness shall be submitted with review the scientific merit of the project personnel must include: (1) the application and shall be an element applications, and should include the Familiarity with syphilis transmission, of the evaluation. following information: Program treatment and prevention. (2) Announcement Number 02044; name Experience working within 2. CDC Activities and address of institution; name and communities experiencing high rates of A cooperative agreement reflects an telephone number of a contact person; syphilis. (3) Experience working with assistance relationship between the specific objectives to be addressed by community-based organizations that Federal Government and the recipient the proposed project; and a brief serve target population living in high in which substantial programmatic description of project plans. Although
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an LOI is required, the terms of the LOI characteristics of the targeted c. Describe the recruitment, sampling, are not binding and will not be used in communities including whether they and retention plans. the review of the application. are urban or rural. Provide evidence of d. Describe the measures to be used to the communities’ urban or rural Applications evaluate the community level impact of characteristics. State concisely the the intervention. Applications should Applications must be developed in importance and health relevance of the include self-report, social cognitive, accordance with the information research described in this application by behavioral and biological measures. contained in this program relating the specific aims to the Outcomes should include: (1) Social announcement, the PHS 398 Grant objectives. cognitive outcomes (e.g. changes in Application, and the instructions 4. Preliminary Studies (2–3 pages attitudes and beliefs). (2) Behavioral provided in this section. Use the outcomes (e.g. changes in health seeking information in the Purpose, Program recommended) Use this section to provide an account behavior, sexual risk behavior, syphilis Requirements, and Evaluation Criteria screening) (3) Biological outcomes (e.g. to develop the application content. Your of the research team members’ preliminary studies pertinent to the syphilis serology, other bacterial STDs) application will be evaluated on the (4) Process outcomes (e.g. participant criteria listed below, so it is important application that will help to establish the experience and competence of the tracking of conversation initiations, to address each, preferably in order, opinion leader attendance at training with sufficient detail. Applicants may research team members to pursue this proposed project. Include information sessions). (5) Morbidity outcomes (e.g., submit only one proposal. rates of syphilis and other STDs among The narrative should be no more than about the experience of the research members of the targeted community). 25 double spaced pages, printed on one team and its members with the target Assessment of outcomes should be side, with one-inch margins, unreduced population, behavioral and/or appropriate for the target population font, and a number on each page. community level interventions, and community. Applications with more than 25 pages evaluation, and history of collaboration will be returned and not reviewed. with relevant community partners e. Describe how the data will be Please provide only attachments or including CBO’s. References to collected. Sampling schemes should be appendices that are directly relevant to appropriate reports, presentations, the same in the study and control this request for funding. The budget and publications and manuscripts submitted communities. Choose and justify the attachments/appendices, including or accepted for publication may be sample size(s) considering the letters of support, are not included in listed and are not part of the page principles of Diffusion Theory (Rogers, the count for the 25-page limit. All limitations. Five collated sets of no 1995) and the different outcomes of pages, including appendices, should be more than ten such items of background interest. Power calculations are not numbered sequentially. To document material may be submitted in an necessary for biological outcome eligibility, the narrative must contain appendix. measures. the following sections in the order 5. Research Design and Methods (15–20 f. Describe the data analysis plan, presented below: pages recommended) including a justification for the statistical techniques chosen to analyze 1. Abstract (1 page recommended) a. Describe the research design and the intervention data. Provide a brief abstract of the project. the procedures to be used to accomplish g. Describe quality assurance plans. The abstract must reflect the project’s the specific aims of the project. focus and the length of the project Applications must address h. Provide a tentative sequence or period (maximum of 3 years) for which heterosexually active men and women timetable for the project. assistance is being requested (see at risk for syphilis infection. i. Describe the nature and extent of ‘‘Availability of Funds’’ for additional Applications must include the CPOL collaboration with CDC and/or others information). model as the community level during various phases of the project. intervention. Communities in counties 2. Specific Aims/Objectives (1 page within HMA project areas must be j. Specific, measurable, and time- recommended) matched, similar in population and framed objectives. List the objectives and the specific demographic characteristics, while 6. Inclusion of Women and Racial and research questions the application is being geographically placed such that Ethnic Populations intended to address. State the activities in the study community do hypotheses to be tested. not have an impact on the control Describe the proposed plan for the community. inclusion of both sexes and racial and 3. Background and Significance (2–5 b. Describe the intervention ethnic minority populations. Describe pages recommended) development process, content and the proposed justification when Briefly sketch the background leading delivery, including specific intervention representation is limited or absent. to the present application, including the protocols or plans for the development Include a statement as to whether the theoretical or conceptual framework, of intervention protocols. Also, include design of the study is adequate to and evaluate existing knowledge. the intent to offer the intervention to the measure differences when warranted. Additional information regarding control communities after the 7. Human Subject Involvement syphilis elimination is included in completion of the research program. Attachment B. Specifically document Applications must demonstrate a Describe procedures that will provide how the proposed intervention may comprehensive understanding of the for the protection of human subjects, impact on syphilis morbidity in the CPOL model and how it can be applied including procedures to obtain targeted communities. Describe any in a community affected by syphilis. appropriate parental consent where available STD or syphilis specific The application must also include a necessary. List how these procedures prevention services. Describe the description of how members of the adequately address the requirements of syphilis morbidity in the proposed target population will be involved in the 45 CFR part 46 for the protection of project locations. Describe the intervention activities. human subjects.
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F. Submission and Deadline merit to evaluate the methods and e. Describe how the data will be scientific quality of the application. collected. Sampling schemes should be Letter of Intent (LOI) Factors to be used to evaluate the the same in the study and control On or before June 1, 2002, submit the application include: communities. Choose and justify the LOI to the Grants Management sample size(s) considering the Specialist identified in the ‘‘Where to 1. Specific Aims (5 points) principles of Diffusion Theory (Rogers, Obtain Additional Information’’ section The specific aims of the research 1995) and the different outcomes of of this announcement. project, including the objectives, and interest. Power calculations are not documenting the hypotheses to be Application necessary for biological outcome tested. measures. Submit the original and five copies of f. The plan for data collection and 2. Background (10 points) PHS–398 (OMB Number 0925–0001) data management, including quality (adhere to the instructions on the Errata The background of the project, i.e., assurance procedures. Instruction Sheet for PHS 398) and, if the basis for the present proposal, the g. A statistical analysis plan applicable, the Optional Form 310, critical evaluation of existing appropriate to the intervention ‘‘Protection of Human Subjects knowledge, and identification of how evaluation. Assurance Identification Certification the intervention will effect syphilis h. The project time line. Declaration’’. Forms are available in the morbidity and its anticipated impact on i. Measures of Effectiveness. The Peer application kit and at the following the affected communities. The Review Panel shall assure that measures Internet address: http://www.cdc.gov/ description of available STD or syphilis set forth in the application are in od/pgo/forminfo.htm. specific prevention services and the accordance with CDC’s performance On or before July 15, 2002, submit the syphilis morbidity in the proposed plans (See Attachment 4 in the application to the Technical Information project locations. A description of the application kit). Management Section, Office of the targeted communities including 5. Research Program Team (15 points) Director, Procurement and Grants evidence of the communities’ urban or Office, 2920 Brandywine Road, Suite rural characteristics. The qualifications and 3000, Atlanta, Georgia 30341. appropriateness of the proposed Deadline: Applications shall be 3. Significance (15 points) personnel to accomplish the proposed considered as meeting the deadline if The significance and innovation from activities. Applications should include they are either: scientific and programmatic standpoints multi-disciplinary teams, including (but 1. Received on or before the deadline of the proposed research, including the not limited to) health department staff, date; or operationalization of the theoretical experienced with syphilis transmission 2. Sent on or before the deadline date model and conceptual framework for and prevention, staff from participating and received in time for submission to the research and the rigor and CBO’s and university scientists. The the independent review group. appropriateness with which the combined members of the research team (Applicants must request a legibly dated outcomes are evaluated. must demonstrate a history of U.S. Postal Service postmark or obtain familiarity with, access to, and success a legibly dated receipt from a 4. Research Design and Methods (45 working with the target populations (e.g. commercial carrier or U.S. Postal points) high risk heterosexually active adults at Service. Private metered postmarks will a. The adequacy of the proposed risk for syphilis), delivery of behavioral not be acceptable proof of timely research design to address the overall and/or community level interventions, mailing.) objectives. and evaluation expertise. This Late Applications: Applications that b. Plans for the development of familiarity, access and success may be do not meet the criteria in 1. or 2. above intervention content and delivery, demonstrated through biographical will be returned to the applicant. including specific intervention sketches, previous studies, and letters of protocols or plans for the development support. Applicants must demonstrate a G. Evaluation Criteria of intervention protocols, and how collaborative relationship between the Applications will be reviewed and members of the target population are local health departments, CBOs, and evaluated only on the basis of the involved in that process. university researchers. The degree of evidence submitted. Each application c. The recruitment and retention plan. commitment and cooperation of will be evaluated individually against d. The self-report, social-cognitive, proposed collaborators must be the following criteria by an independent behavioral and biological outcome confirmed by letters of support detailing review group appointed by CDC. measures to be assessed. Outcomes the nature and extent of the Applications will be reviewed by CDC should include: (1) Social cognitive involvement. for completeness and responsiveness to outcomes (e.g. changes in attitudes and the purpose of this program beliefs). (2) Behavioral outcomes (e.g. 6. Research Capacity (10 points) announcement (as described in Section changes in health seeking behavior, Availability of appropriate scientific A), and as outlined under Eligible sexual risk behavior, syphilis oversight necessary to fulfill research Applicants and Program Requirements. screening). (3) Biological outcomes (e.g. program objectives. These will include Incomplete applications, and syphilis serology, other bacterial STDs). development, implementation, and applications that are not responsive, (4) Process outcomes (e.g. participant evaluation of the intervention, will be returned to the applicant tracking of conversation initiations, recruitment and retention of without further consideration. It is opinion leader attendance at training participants, and collection and important that the applicant’s abstract sessions). (5) Morbidity outcomes (e.g., management of project-related data. The reflects the project’s focus, because the rates of syphilis and other STDs among application should describe the abstract will be used to help determine members of the targeted community). experience and capacity of the project the responsiveness of the application. Assessment of outcomes should be team, and should include curriculm All applications will be appropriate for the target population vitae (CVs) and position descriptions for independently reviewed for scientific and community. all key staff in an attachment.
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7. Human Subjects (Not scored) AR–10 Smoke-Free Workplace DEPARTMENT OF HEALTH AND Restate the strategies for the Requirements HUMAN SERVICES recruitment and retention of human AR–11 Healthy People 2010 Centers for Disease Control and subjects and how the applicant will AR–12 Lobbying Restrictions Prevention obtain appropriate consent, when necessary. Are the procedures proposed AR–14 Accounting System [Program Announcement 02087] adequate for the protection of human Requirements subjects and are they fully documented? AR–15 Proof of Non-Profit Status Distribution and Evaluation of Does the application adequately address Hepatitis Curricula for Inmates and AR–21 Small, Minority, And Women- Correctional Staff; Notice of the requirements of Title 45 CFR part 46 owned Business for the protection of human subjects? Availability of Funds AR–22 Research Integrity The degree to which the applicant has A. Purpose met the CDC Policy requirements I. Authority and Catalog of Federal The Centers for Disease Control and regarding the inclusion of women, Domestic Assistance Number ethnic, and racial groups in the Prevention (CDC) announces the proposed research, including: (1) The This program is authorized under availability of fiscal year (FY) 2002 proposed plan for the inclusion of both sections 318 and 318A of the Public funds for a cooperative agreement program for distribution and evaluation sexes and racial and ethnic minority Health Service Act (42 U.S.C. sections of hepatitis curricula for inmates and populations for appropriate 247c and 247c–1). The Catalog of correctional staff. This program representation. (2) The proposed Federal Domestic Assistance number is addresses the ‘‘Healthy People 2010’’ justification when representation is 93.977. limited or absent (3) A statement as to focus area of Immunization and whether the design of the study is J. Where To Obtain Additional Infectious Diseases. adequate to measure differences when Information The purpose of the program is to warranted. provide assistance for the printing, This and other CDC announcements, distribution and evaluation of an 8. Budget (Not scored) the necessary applications, and existing educational curriculum that The extent to which the budget is associated forms can be found on the addresses the prevention counseling, reasonable, clearly justified, and CDC home page Internet address— testing and treatment of viral hepatitis consistent with the intended use of http://www.cdc.gov. Click on ‘‘Funding’’ in correctional settings in the United funds. All budget categories must be then ‘‘Grants and Cooperative States. Specifically, applications are itemized and appropriately justified. Agreements.’’ solicited for viral hepatitis curricula aimed at the education and training of H. Other Requirements If you have questions after reviewing inmates and correctional staff. the contents of all the documents, Technical Reporting Requirements business management technical B. Eligible Applicants Provide CDC with original plus two assistance may be obtained from: Applications may be submitted by copies of— Gladys T. Gissentanna, Grants public and private non-profit 1. Annual progress report (the results Management Specialist, Procurement organizations and by governments and of the Measures of Effectiveness shall be and Grants Office, Grants Management their agencies; that is, universities, a data requirement to be submitted with colleges, research institutions, hospitals, or incorporated into the progress report. Branch, Centers for Disease Control and Prevention (CDC), 2920 Brandywine other public and private non-profit See CDC’s Performance Plans at internet organizations, State and local site: http://www.cdc.gov/od/perfplan/ Road, Room 3000, Atlanta, Georgia 30341–4146. Telephone: (770) 488– governments or their bona fide agents, 2001perfplan). including the District of Columbia, the 2753. Fax: (770) 488–2777. E-mail 2. Financial status report, no more Commonwealth of Puerto Rico, the address: [email protected]. than 90 days after the end of the budget Virgin Islands, the Commonwealth of period. For program technical assistance, the Northern Mariana Islands, American 3. Final financial and performance contact: Janet S. St. Lawrence, Ph.D., Samoa, Guam, the Federated States of reports, no more than 90 days after the Division of STD Prevention, Centers for Micronesia, the Republic of the end of the project period. Disease Control and Prevention (CDC), Marshall Islands, and the Republic of Send all reports to the Grants 1600 Clifton Road, MS E44, Atlanta, GA Palau, federally recognized Indian tribal Management Specialist identified in the 30333. Telephone: (404) 639–8298. Fax: governments, Indian tribes, or Indian ‘‘Where to Obtain Additional (404) 639–8622. E-mail address: tribal organizations and Faith-based Information’’ section of this [email protected]. organizations are eligible to apply. announcement. Applicants must have ready access to The following additional Dated: April 24, 2002. corrections facilities for distribution and requirements are applicable to this Sandra R. Manning, evaluation of their educational program. For a complete description of Director, Procurement and Grants Office, curricula. each, See Attachment I in the Centers for Disease Control and Prevention. Note: Title 2 of the United States Code application kit. [FR Doc. 02–10681 Filed 4–30–02; 8:45 am] section 1611 states that an organization AR–1 Human Subjects Requirements BILLING CODE 4163–18–P described in section 501(c)(4) of the Internal AR–2 Requirements for Inclusion of Revenue Code that engages in lobbying Women and Racial and Ethnic activities is not eligible to receive Federal Minorities in Research funds constituting an award, grant or loan. AR–5 HIV Program Review Panel Requirements C. Availability of Funds AR–9 Paperwork Reduction Act Approximately $150,000 is available Requirements in FY 2002 to fund one award. It is
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expected that the award will begin on or E. Content are available in the application kit and about September 1, 2002, and will be at the following Internet address: Letter of Intent (LOI) made for a 12-month budget period www.cdc.gov/od/pgo/forminfo.htm. within a project period of one year. The An LOI is optional for this program. On or before July 1, 2002, submit the funding estimate may change. The narrative should be no more than 5 application to: single-spaced pages, printed on one Technical Information Management-PA Funding Preferences side, with one inch margins, and 02087, In making awards, priority for funding unreduced font. Your letter of intent Procurement and Grants Office, will be given to applicants with existing will be used to plan and execute the Centers for Disease Control and educational curricula for purposes of evaluation of applications, and should Prevention, increasing the health (especially include the following information: (1) 2920 Brandywine Rd, Room 3000, hepatitis) knowledge and awareness of name and address of institution, and (2) Atlanta, GA 30341–4146. Deadline: Applications shall be incarcerated persons and those under Name, address, and telephone number considered as meeting the deadline if the supervision of corrections staff, as of contact person. they are received on or before the well as the corrections staff itself, in Applications deadline date. local, State and Federal public and Use the information in the Program Late: Applications which do not meet private corrections programs with a Requirements, Other Requirements, and the criteria above will be returned to the demonstrated high concentration of Evaluation Criteria sections to develop applicant. persons at high risk for viral hepatitis the application content. Your infection. Further preference will be G. Evaluation Criteria application will be evaluated on the given to applicants with a mechanism in criteria listed, so it is important to Each application will be evaluated place to distribute curricula materials to follow them in laying out your program individually against the following corrections facilities nationwide. plan. The narrative should be no more criteria by an independent review group D. Program Requirements than 20 double-spaced pages, printed on appointed by CDC. one side, with one inch margins, and 1. Objectives (30 points) In conducting activities to achieve the unreduced font. The degree to which the project purpose of this program, the recipient Include the following in the narrative objectives are capable of achieving the will be responsible for the activities section of your application: specific requirements defined in the under 1. (Recipient Activities), and CDC 1. Provide clear, measurable, time- program announcement. Objectives will be responsible for the activities phased objectives as a part of the plan should include process and outcome listed under 2. (CDC Activities). of operation with clearly stated long measures. 1. Recipient Activities range goals. 2. Provide an operational plan that 2. Plan (15 points) a. Develop an operational plan and describes how the objectives will be The degree to which the proposed time-line for the project period that will achieved. activities described in the plan of reproduce and distribute an existing 3. Provide an evaluation plan that operation, addresses the objectives and curricula to educate inmates and includes qualitative and quantitative the degree of attainability of these corrections officers. measures to assess the effectiveness of objectives. The degree to which the b. Develop a plan that will evaluate the program in accomplishing the applicant has met the CDC Policy the curricula and measure, at a program objectives. requirements regarding the inclusion of 4. Provide a projected time line for minimum, changes in knowledge of women, ethnic, and racial groups in the conducting the proposed program and specific audiences who would most proposed research. This includes: (a) evaluation activities. benefit from curricula’s effectiveness The proposed plan for the inclusion of 5. Provide a description of personnel (e.g., corrections staff, inmates). both sexes and racial and ethnic that includes current and proposed staff c. Analyze the evaluation results and minority populations for appropriate with position titles, position publish the findings and representation, (b) the proposed descriptions, experience, and recommendations. justification when representation is percentage of time staff person will limited or absent, (c) a statement as to 2. CDC Activities devote to assigned project whether the design of the study is responsibilities. Also, include a a. Provide technical support related to adequate to measure differences when curriculum vita for new staff. warranted, and (d) a statement as to viral hepatitis information and 6. Provide a detailed, line-item budget whether the plans for recruitment and evaluation methodology, as requested. for the project period that justifies each outreach for study participants include b. Provide technical assistance for the line-item. distribution of the curricula, for both the process of establishing partnerships inmates and corrections staff, as F. Submission and Deadline with community(ies) and recognition of mutual benefits. requested. Letter of Intent (LOI) c. Provide assistance in developing On or before June 1, 2002, submit the 3. Evaluation (10 points) the evaluation plan, as requested. LOI to the Grants Management The extent to which the proposed d. Assist in the development of a Specialist identified in the ‘‘Where to plan for evaluation measures the research protocol for Institutional Obtain Additional Information’’ section changes in knowledge of the target Review Board (IRB) review by all of this announcement. audiences, the impact on health cooperating institutions participating in behaviors and the cost benefit of such Application the research project. The CDC IRB will training for the organizations involved. review and approve the protocol Submit the original and five copies of initially and or at least on an annual PHS–398 (OMB Number 0925–0001) 4. Staff (10 points) basis until the research project is (adhere to the instructions on the Errata The degree to which the applicant completed. Instruction Sheet for PHS 398). Forms documents the staff qualifications and
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skills needed to conduct the project AR–7 Executive Order 12372 Review ACTION: Announcement of the activities. AR–9 Paperwork Reduction Act availability of funds and request for Requirements applications for Child Care Research 5. Capacity (30 total points) AR–10 Smoke-Free Workplace Scholars and State Child Care Data and a. The degree to which the Requirements Research Capacity Projects. organization demonstrates access to the AR–11 Healthy People 2010 institutions and target populations AR–12 Lobbying Restrictions SUMMARY: The purpose of this program necessary in representing both the AR–15 Proof of Non-Profit Status announcement is to announce the security and health aspects of a broad AR–22 Research Integrity availability of $1.1 million in fiscal year range of correctional facilities and I. Authority and Catalog of Federal 2002 funds for child care research, activities (e.g., pre-release). The Domestic Assistance Number demonstration, and evaluation activities organizations must show evidence of a to be distributed through grants to fund quality curricula with supporting This program is authorized under projects in the following two priority educational materials. (15 points) sections 301(a), and 317(k)(1) and areas: (1) Child Care Research Scholars; b. Evidence of experience working 317(k)(2) of the Public Health Service and (2) State Child Care Data and with corrections in health, security, and Act, [42 U.S.C. sections 241(a), and Research Capacity Projects. Accredited capable staff to deliver education and 247b(k)(1) and 247(k)(2)], as amended. universities and colleges may submit a training to inmates and staff. (15 points) The Catalog of Federal Domestic Child Care Research Scholar application Assistance number is 93.283. 6. Measures of Effectiveness (5 points) on behalf of a doctoral student J. Where To Obtain Additional conducting dissertation research on a Does the applicant provide Measures Information child care policy topic. Child Care and of Effectiveness that will demonstrate Development Fund Lead Agencies the accomplishment of the purpose of This and other CDC announcements seeking to improve their capacity for the cooperative agreement? Are the can be found on the CDC home page data analysis and policy-relevant measures objective/quantitative and do Internet address—http://www.cdc.gov. research are invited to submit they adequately measure the intended Click on ‘‘Funding’’ then ‘‘Grants and applications for the State Child Care outcome? Cooperative Agreements.’’ Data and Research Capacity Projects. If you have questions after reviewing Projects funded under each of the 7. Budget (Not scored) the contents of all the documents, priority areas are expected to address The degree to which the budget is business management technical child care questions with implications reasonable, clearly justified, and assistance may be obtained from: for children and families, especially consistent with the intended use of Sharon Robertson, Grants low-income working families and funds. Management Specialist, Acquisition and Assistance, Branch B, Procurement and families transitioning off welfare. Of 8. Human Subjects (Not Scored) Grants Office, Centers for Disease particular interest are studies that Does the application adequately Control and Prevention, 2920 address child care subsidy issues such address the requirements of Title 45 Brandywine Road, Room 3000, Atlanta, as family eligibility, parent co-pays, CFR part 46 for the protection of human GA 30341–4146. provider reimbursement, and waiting subjects? An application can be Telephone number: 770–488–2748. e- lists, and broader child care issues, such disapproved if the research risks are mail address: [email protected]. as professional development of sufficiently serious and protection For program technical assistance, providers. Also of interest are efforts to against risks is so inadequate as to make contact: Linda Moyer, Centers for understand the relative costs and merits the entire application unacceptable. Disease Control and Prevention, of strategies to improve the quality of child care. These issues are of particular H. Other Requirements National Center for Infectious Diseases, Division of Viral Hepatitis, 1600 Clifton relevance to State and local policy- Technical Reporting Requirements Rd, NE, Mailstop G–37, Atlanta, GA makers who must make difficult decisions about how best to manage Provide CDC with original plus two 30333. Telephone number: 404–371– 5910. e-mail address: [email protected]. limited subsidy resources while copies of: responding to the needs of low-income 1. Semiannual progress reports. Dated: April 25, 2002. families and children. Projects 2. Financial status report, no more Sandra R. Manning, investigating ACF priorities related to than 90 days after the end of the budget Director, Procurement and Grants Office, child care policy, including early period. Centers for Disease Control and Prevention. 3. Final financial and performance literacy, faith-based providers, father [FR Doc. 02–10680 Filed 4–30–02; 8:45 am] reports, no more than 90 days after the involvement, strengthening families, end of the project period. BILLING CODE 4163–18–P rural child care, positive youth Send all reports to the Grants development, and improved knowledge Management Specialist identified in the related to outcome measures will also be DEPARTMENT OF HEALTH AND given priority. Funded projects will be ‘‘Where to Obtain Additional HUMAN SERVICES Information’’ section of this part of a comprehensive research agenda announcement. intended to increase the capacity for Administration for Children and child care research at the national, State, The following additional Families requirements are applicable to this and local levels and promote better program. For a complete description of [Program Announcement No. ACYF–PA– linkages among research, policy, each, see Attachment I of the CCB–2002–02] practice, and outcomes for children and announcement in the application kit. families. Child Care Policy Research AR–1 Human Subjects Requirements Discretionary Grants DATES: The closing date for submission AR–2 Requirements for Inclusion of of applications is June 17, 2002. Mailed Women and Racial and Ethnic AGENCY: Administration on Children, applications postmarked after the Minorities in Research Youth and Families, ACF, DHHS. closing date will be classified as late.
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Mailing and Delivery Instructions: rests with the Chief Grants Management Levels Mailed applications shall be considered Officer. D. The Child Care Bureau as meeting the announcement deadline Notice of Intent to Submit E. Research Agenda and Goals if they are either received on or before Application: If you intend to submit an F. Priority Areas to be Funded under this Announcement the deadline date, or sent on or before application, please notify the Child Care G. Submission of Applications the deadline date, and received by ACF Bureau by fax at 202–690–5600. This fax H. Selection Process in time for the independent review to: should include the following Administration on Children, Youth and information: the number and title of this Part II. Priority Area 1: Child Care Research Families, Child Care Bureau Program announcement; your organization’s Scholars Announcement No. ACYF–PA–CCB– name and address; and your contact A. Purpose 2002–02, Child Care Bureau Conference person’s name, phone number, fax B. Number of Awards Management Center c/o MasiMax number, and e-mail address. The C. Project Period D. Funding Levels Resources, Inc., 1300 Piccard Drive, information will be used to determine E. Matching Requirements and Non-Federal Suite 203, Rockville, MD 20850, the number of expert reviewers needed Share Telephone: 1–240–632–5632. to evaluate applications and to update F. Maximum Federal Share Applicants must ensure that a legibly the mailing list for program G. Eligible Applicants dated U.S. Postal Service postmark or a announcements. H. Additional Requirements I. Project Description and Application legibly dated, machine-produced FOR FURTHER INFORMATION CONTACT: For Requirements postmark or a commercial mail service information about the application is affixed to the envelope/package 1. Contents and Format of the Application process and program information, 2. Project Narrative Statement containing the application(s). To be contact Dr. Joanna Grymes, Program J. Evaluation Criteria acceptable as proof of timely mailing, a Specialist, Administration for Children postmark from a commercial mail and Families, Child Care Bureau, Room Part III. Priority Area 2: State Child Care Data and Research Capacity Projects service must include the logo/emblem 2046, Mary E. Switzer Building, 330 C of the commercial mail service company Street, SW., Washington, DC 20447, A. Purpose and must reflect the date the package Phone: 202–205–8214, Fax: 202–690– B. Background Information C. Eligible Applicants was received by the commercial mail 5600, Email: [email protected]. service company from the applicant. D. Number of Awards SUPPLEMENTARY INFORMATION: This E. Project Duration, Funding Levels, and Private metered postmarks shall not be announcement includes the instructions Budget Periods acceptable as proof of timely mailing. needed to apply for (1) Child Care F. Federal Share Applications hand carried by Research Scholars and (2) State Child G. Other Financial Requirements applicants, applicant couriers, or by Care Data and Research Capacity H. Data Ownership other representatives of the applicant Projects. The Standard Federal Forms I. Project Description and Application shall be considered as meeting an Requirements that must be included in applications 1. Contents and Format of the Application announcement deadline if they are can be downloaded from the Internet at: received on or before the deadline date, 2. Project Narrative Statement http://www.acf.dhhs.gov/programs/ofs/. J. Evaluation Criteria between the hours of 8:30 a.m. and 5 For each priority area, the required p.m., EST, Monday through Friday Standard Federal Forms are identified Part IV. Appendices (excluding Federal holidays) at the under ‘‘Project Description and A. Appendix 1—Content and Format of address above. (Applicants are Application Requirements.’’ Application cautioned that express/overnight mail The SUPPLEMENTARY INFORMATION B. Appendix 2—Uniform Project Description services do not always deliver as section consists of six parts. Part I Part I. General Information agreed.) provides information about the Child ACF cannot accommodate Care Bureau, priority areas to be funded A. Purpose transmission of applications by fax or under this announcement, and The purpose of this program through other electronic media, instructions for submitting an announcement is to fund child care regardless of date or time of submission application. Part II provides background research grants that will increase the and receipt. Therefore, applications information, instructions for completing capacity for child care research at transmitted to ACF electronically will applications, evaluation criteria, and national, State, and local levels while not be accepted. funding procedures for Child Care simultaneously addressing child care Late Applications. Applications that Research Scholars (Priority Area 1). Part policy questions with implications for do not meet the criteria stated above and Ill provides background information, children and families, particularly low- are not received by the deadline date instructions for completing income working families and families and time are considered late applications, evaluation criteria, and transitioning off welfare. An additional applications. The Administration for funding procedures for State Child Care purpose is to further an understanding Children and Families (ACF) will notify Data and Research Capacity Projects of the interactions among child care each late applicant that its application (Priority Area 2). Part VI Appendices policy, and the ACF administrative will not be considered in the current includes Appendix 1, content and priorities, including early literacy, faith- competition. format of application, and Appendix 2, based providers, father involvement, Extension of Deadline. ACF may the OMB-approved Uniform Project strengthening families, rural child care, extend an application deadline for Description. The contents are outlined positive youth development, and applicants affected by acts of God such below: improved knowledge related to outcome as floods and hurricanes, when there is measures. widespread disruption of mail service, Table of Contents or for other disruption of services, such Part I. General Information B. Citations as prolonged blackout, that affect the A. Purpose 1. Statutory authority: The Child Care public at large. A determination to B. Citations and Development Block Grant Act of waive or extend deadline requirements C. Number of Awards, Duration, and Funding 1990 as amended (CCDBG Act); section
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418 of the Social Security Act; quality, affordability, and supply of strengthening families, rural child care, Consolidated Appropriations Act, 2001 child care available for all families. The positive youth development, and (Pub. L. 106–554). Child Care Bureau administers the Child improved knowledge related to outcome 2. Catalog of Federal Domestic Care and Development Fund (CCDF), a measures are also a significant Assistance: The Catalog of Federal $4.8 billion child care program that component of the research agenda. Domestic Assistance number for both includes funding for child care Funded projects will be part of a priority areas is 93.647. subsidies and activities to improve the comprehensive research agenda 3. Paperwork Reduction Act of 1995 quality and availability of child care. intended to increase the capacity for (Pub. L. 104–13): Public reporting CCDF was created after amendments to child care research at the national, State, burden for this collection of information ACF child care programs by Title VI of and local levels and promote better is estimated to average 15 hours per the Personal Responsibility and Work linkages among research, policy, response for the Child Care Research Opportunity Reconciliation Act of 1996 practice, and outcomes for children and Scholars and 20 hours per response for consolidated four Federal child care families. the State Child Care Data and Research funding streams including the Child The Child Care Bureau’s FY 2002 Capacity Building Projects. These Care and Development Block Grant, specific child care research agenda will estimates include the time for reviewing AFDC/JOBS Child Care, Transitional extend the previously funded child care instructions, gathering and maintaining Child Care, and At-Risk Child Care. research activities and launch new data needed, and reviewing the With related State and Federal funds, evaluation and research capacity- collection of information. The project CCDF provides close to $11 billion a building initiatives. The activities description is approved under OMB year to States, Territories, and Tribes to supported through this announcement control Number 0970–0139 which help low-income, working families will provide information and data to expires 12/31/03. An agency may not access child care services. guide child care services, inform policy conduct or sponsor, and a person is not The Bureau works closely with ACF debates, and assist in developing required to respond to, a collection of Regions, States, Territories, and Tribes solutions to complex child care issues. information unless it displays a to assist with, oversee, and document We intend to improve our capacity to currently valid OMB control number. implementation of new policies and respond to questions of immediate C. Number of Awards, Duration, and programs in support of State, local and concern to policy makers, strengthen the Funding Levels private sector administration of child child care research infrastructure, and care services and systems. In addition, increase knowledge about the efficacy of Approximately 5–8 grants, including the Bureau collaborates extensively with child care policies and programs in both priority areas, will be awarded in other offices throughout the Federal providing positive outcomes for Fiscal Year 2002 (ending September 30, government to promote integrated, children and helping low-income 2002), subject to results of the family-focused services and coordinated families obtain and retain work. competitive review process and child care delivery systems. In all of As more knowledge is gained about availability of funds. This these activities, the Bureau seeks to child development and well-being in announcement is soliciting applications enhance the quality, availability, and contemporary environments, there is a for project periods of up to three years. affordability of child care services, need for better understanding of how Awards, on a competitive basis, will be support children’s healthy growth and child care affects the growing child. As for a one-year budget period. development in safe child care more is known about the growing Applications for continuation grants environments, enhance parental choice diversity in family values, child rearing funded under these awards beyond the and involvement in their children’s strategies, preferences, and needs, one-year budget period will be care, and facilitate the linkage of child questions arise as to how child care entertained in subsequent years on a care with other community services. policies and programs affect the ability non-competitive basis, subject to the of parents to make wise decisions for availability of funds, satisfactory E. Research Agenda and Goals their children. A better understanding of progress of the grantee and a The research agenda and goals of ACF child care is also critical to employment determination that continued funding and the Child Care Bureau target child goals for adults, particularly in the arena would be in the best interest of the care questions with implications for of welfare reform and economic self- Government. Child Care Research children and families, especially low- reliance. In addition, there is a need for Scholars may apply, under these income working families and families better information about how child care conditions, for a second year; State transitioning off welfare. Of particular can help parents manage the difficulties Child Care Data and Research Capacity interest are child care subsidy issues of balancing work and family life, Projects may apply for up to two such as family eligibility, parent co- especially when resources are scarce. additional years under the conditions pays, provider reimbursement, and The research agenda for the Child listed. Should additional funds be waiting lists, and broader child care Care Bureau in FY 2000 and FY 2001 available in FY 2003, ACF also reserves issues, such as professional emerged from five broad research the right to fund additional projects development of providers. Also of questions. These questions were from among the applications received interest are efforts to understand the designed to provide descriptive profiles through this announcement. Funding relative costs and merits of strategies to of child care supply and demand, levels for the first budget period will be improve the quality of child care. These examine major variations and their up to $30,000 for the Child Care issues are of particular relevance to outcomes, explore the interrelationships Research Scholar grants and up to State and local policy-makers who must among child care market forces, policies $250,000 for the State Child Care Data make difficult decisions about how best and programs, and determine how these and Research Capacity projects. to manage limited subsidy resources factors play out among different while responding to the needs of low- populations of children and families. D. The Child Care Bureau income families and children. The ACF These questions were: (a) What does The Child Care Bureau (CCB) was priorities related to child care policy, child care look like today; (b) How do established in 1994 to provide including early literacy, faith-based the variations in child care affect leadership in efforts to enhance the providers, father involvement, children; (c) How do the variations in
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child care affect parents; (d) How do the conduct child care research that is b. A panel of at least three reviewers answers to these broad questions specifically responsive to the needs of will evaluate each application to translate into specific policy and the State and local communities within determine the strengths and weaknesses program choices at the state and local the State; (e) develop leadership skills of the proposal in terms of the Bureau’s levels; and (e) How do the answers to all in the management and interpretation of research goals and expectations for the the questions above differ for sub- data; and, (f) exercise effective priority area under consideration, groups of children and families? As the dissemination strategies and means of requirements for the Project Narrative knowledge base grows in these areas, informing policy decisions with Statement, and the evaluation criteria the emerging questions in child care research results. listed below. policy shift to a broader context. The c. Panelists will provide written G. Submission of Applications Child Care Bureau wishes to build upon comments and assign numerical scores this broad knowledge base and expand Applicants should submit an original for each application. The indicated the research agenda to include questions and two copies of the complete point value for each criterion is the such as: (a) What are the relative merits application packet. Each copy of the maximum numerical score for that and cost-benefits of the policies and application should be securely stapled criterion. The assigned scores for each programs related to child care; (b) How in the upper left-hand corner, clipped, criterion will be summed to yield a total can the child, family and community or enclosed in a quick-release binder. evaluation score for the proposal. outcomes of policies and programs best Because each application will be d. In addition to the panel review, the be measured; and (c) What are the most duplicated for the review panel, do not Bureau may solicit comments from cost-effective policies and programs that use non-removable binders. Do not other Federal offices and agencies, from facilitate positive outcomes for children, include tabs, plastic inserts, brochures, the states, from relevant non- families, and communities? Of primary videos, or any other item that cannot be governmental organizations, and from importance are projects that have the photocopied. individuals whose particular expertise capability of informing policy makers at is identified as necessary for the H. Selection Process the Federal, State and local levels on consideration of technical issues arising issues related to child care policy. The Commissioner, Administration during the review. Their comments, F. Priority Areas To Be Funded Under on Children, Youth and Families, will along with those of the panelists, will be This Announcement make the final selection of the considered by the Bureau in making applicants to be funded, upon receipt of funding decisions. The Bureau will also Projects funded under each priority the recommendation of the Associate take into account the best combination area will contribute to the Child Care Commissioner for the Child Care of proposed projects to meet overall Bureau’s research goals, provide timely Bureau. Applications may be funded in research goals. answers to critical questions, and whole or in part depending on: (1) The expand research capacity. 2. Funding Date 1. Child Care Research Scholar grants rank order of applicants resulting from Grants to successful applicants will be will provide support for doctoral the competitive review; (2) staff review awarded by September 29, 2002. candidates in conducting dissertation and consultations; (3) the combination research on child care. Issues of special of projects which best meets the Part II. Priority Area 1: Child Care priority for Child Care Research Bureau’s research objectives; (4) the Research Scholars Scholarships are child care policy funds available; and (5) other relevant A. Purpose issues, especially those focusing on considerations. outcomes for children and families. For Selected applicants will be notified This priority is intended to strengthen a further discussion of the priorities, see through the issuance of a Financial the child care research infrastructure by Section E above. Applicants should Assistance Award which sets forth the supporting the development of expect to complete their dissertation amount of funds granted, the terms and researchers with a grasp of child care research within the two-year conditions, reporting requirements, the research and its implications for scholarship period. effective date of the award, the budget policies and programs. Under this 2. State Child Care Data and Research period for which support is given, and priority area, support will be provided Capacity Projects are being funded to the total project period for which to doctoral candidates in conducting provide support to Child Care and support is provided. dissertation research on child care Development Fund State Lead Agencies 1. Screening and Panel Review issues under the auspices of the Child in building internal or contractual Care Bureau and the educational research and evaluation capacity. A Each application will be screened to institution in which the student is major emphasis of these projects will be determine whether the applicant enrolled. Dissertation research under to improve the timeliness and reliability organization is eligible as specified in this priority must support the Bureau’s of the State child care data reported to each of the priority areas. Applications research agenda including addressing the Child Care Bureau. We expect that from ineligible organizations will be important questions about child care projects funded under this priority will excluded from the review. that have implications to families and focus on building a State-level a. The review will be conducted in children. The student is expected to infrastructure to: (a) Improve data Washington, D.C. Expert reviewers will gain experience and expertise in collection, analysis, interpretation, and include researchers, Federal or State theories and methods related to child reporting of CCDF data; (b) develop or staff, child care administrators and other care, child development, early improve analytic linkages with other individuals experienced in the study of childhood education, child care State and local data systems; (c) build child care demand and supply, child program administration, or child care collaborative efforts among institutions care delivery systems, welfare and policy. of higher education, research supportive services, early child organizations, policy makers, development and education, parental B. Number of Awards practitioners, and other stakeholders to choice and involvement, and other Up to 5 scholarships will be awarded. promote high quality research; (d) relevant areas. No individual educational institution
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will be funded for more than one student’s faculty advisor is required as c. Table of Contents candidate unless applications from part of this application. Any resultant d. Project Abstract other universities are scored as non- grant award is not transferable to e. Project Narrative Statement competitive by the expert review panel. another student. f. Appendices • Contact Information for Student and C. Project Period H. Additional Requirements Faculty Advisor The project period will be for a period 1. Research projects may include • Curriculum Vitae for Student and of up to 24 months (9/30/02–9/29/04). independent studies conducted by the Faculty Advisor For 24 month projects, the first 12 doctoral candidate or well-defined • Letters of Support from Advisor months will be funded through this portions of a larger study being • Official Transcript of Student competition. The subsequent year conducted by a principal investigator Reflecting Courses Completed at the awards (12 months) will be considered holding a faculty position or senior Masters and Ph.D. Levels on a non-competitive basis subject to research position and for which the 2. Project Narrative Statement the availability of funds from future graduate student will have primary appropriations, satisfactory progress of responsibility. The project narrative statement the grantee, and a determination that 2. The student must be the author of contains most of the information on continued funding is in the best interest the proposal. which applications will be of the government. A subsequent year 3. The student must have progressed competitively reviewed. The Project award will not be approved if the at least to the point of having identified Narrative should be carefully developed student has graduated by the end of the a dissertation committee. in accordance with the research goals first year. 4. Research projects must use sound and expectations described for the quantitative or qualitative research priority area in which the applicant is D. Funding Levels methodologies or some combination of submitting a proposal, the requirements Up to $30,000 will be awarded to each the two. listed below and described in the successful applicant for a 12-month 5. Given the size of these grants, Uniform Project Description (Appendix budget period. If the applicant expects sponsoring universities and colleges are 2 in this announcement), and the to receive a doctorate by the end of the encouraged to waive their customary evaluation criteria described in section first one-year budget period, the indirect charges. ‘‘J’’ below. application should request funding for a 6. Each grant award is intended to The following sections from the single grant period. support the dissertation work of a Uniform Project Description (Appendix 2) should be included in the Project E. Matching Requirements and Non- specific student (the applicant) and is not transferable to another student. Narrative Statement of applications for Federal Share Child Care Research Scholars: There are no matching requirements. I. Project Description and Application a. Objectives and Need for Assistance Requirements F. Maximum Federal Share b. Approach 1. Content and Format of Application • Research Design and Methodology The maximum federal share is • Management Plan $30,000 for the first 12-month budget Clarity and conciseness are of utmost c. Additional Information period and $20,000 for one subsequent importance. ACYF strongly encourages Organizational Profile 12-month period. applicants to limit their applications to d. Budget and Budget Justification All monies must be used for the 100 pages, double-spaced, with standard dissertation research including required one-inch margins and 12 point fonts. J. Evaluation Criteria personnel costs, travel, and other The total page limitation applies to both Eligible applications will be scored expenses directly related to the narrative text and supporting materials. competitively against the published research. Applicants are cautioned to include evaluation criteria described below. all required forms and materials, These criteria will be used in G. Eligible Applicants organized according to the required conjunction with the other expectations, Eligible applicants include format. (The description of the contents priorities and requirements set forth in universities or colleges on behalf of of the application materials listed below this announcement to evaluate how well doctoral candidates conducting is included in Appendix 1 of this each proposal addresses the Bureau’s dissertation research on a child care announcement.) The application packet research agenda and goals. topic consistent with the research goals must include the following items in Criterion 1: Objectives and Need for and priorities appropriate to child care order: Assistance (maximum of 20 points). policy described in Part I of this a. Cover Letter • The extent to which the application announcement, and who anticipate b. Standard Federal Forms reflects a solid understanding of critical completing the child care-related • Standard Application for Federal issues, information needs, and research dissertation within the two-year Assistance (forms 424 and 424A) goals. scholarship period. • Assurances: Non-construction • The extent to which the conceptual To be eligible to administer the grant Programs (form 424B) model, research issues, objectives and on behalf of the student, the institution • Certifications regarding Lobbying hypotheses are significant, well must be fully accredited by one of the • Disclosures of Lobbying Activities formulated and appropriately linked, regional accrediting commissions • Certification regarding Drug-free reflect the Administration for Children recognized by the Department of Workplace Requirements and Families and the Child Care Education. Although the faculty advisor • Certification regarding Debarment, Bureau’s research agenda and priorities, will be listed as the Principal Suspension, and other and will contribute new knowledge and Investigator, this grant is intended for Responsibility Matters understanding. dissertation work being conducted by a • Protection of Human Subjects • The extent to which the proposed doctoral candidate. Information about • Certification regarding project framework is appropriate, both the graduate student and the Environmental Tobacco Smoke feasible, and would significantly
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contribute to the importance, including relevant background, develop and implement a plan for comprehensiveness, and quality of the experience, training and work on related improving its capacity for data proposed research. research or similar projects; and collection and analysis and conducting • The effectiveness with which the • Demonstrate necessary expertise in policy relevant research. We anticipate proposal articulates the current state of research design, sampling, field work, that during the first budget period, some knowledge relative to issues being data processing, statistical analysis, States may need to focus primarily on addressed, including: Critical reporting, and information enhancements to CCDF reporting child care issues and the complex dissemination. systems to ensure that their interrelationships among major Criterion 5: Budget and Budget administrative data are valid, reliable variables; the significance of these Justification (maximum of 10 points). and useful for policy analysis. Other issues and variables for child care The extent to which proposed project States, with more refined child care data policies and programs; how current costs are reasonable, the funds are systems, will concentrate on developing knowledge would be brought to bear on appropriately allocated across improved capacity to analyze and the proposed research; and how the component areas, and the budget is interpret administrative data, conduct research would benefit various sufficient to accomplish the objectives. research, and use data to inform policy audiences. The budget should include funds to and program decisions. Ultimately, it is Criterion 2: Approach (Research allow the research scholar to participate hoped that these efforts will evolve into Design and Methodology) (maximum of in the 2.5 day Child Care Bureau a comprehensive strategy for ongoing 40 points). Annual Policy Research Meeting in development of a statewide research The extent to which the applicant’s Washington, D.C. infrastructure. States are encouraged to proposed research design: create partnerships with relevant • Appropriately links critical research Part III: Priority Area 2: State Child stakeholders and other appropriate issues, questions, variables, data Care Data and Research Capacity collaborators to achieve these outcomes. sources, samples, and analyses; Projects Applicants must demonstrate the • Employs technically sound and A. Purpose need for assistance, commitment to appropriate approaches, design improving the State’s capacity for child The purpose of this priority area is to elements and procedures; care research and analysis, and the assist State CCDF Lead Agencies in • Reflects sensitivity to technical, potential for these grant funds to make improving their capacity to report logistical, cultural and ethical issues a difference. Successful grantees are reliable required child care data to the that may arise; expected to establish or expand a child • Includes realistic strategies for the Child Care Bureau and to improve their care research, analysis and coordinating resolution of difficulties; capacity to conduct policy-relevant function, either as a unit within State • Adequately protects human research and analysis in order to design government or through a contractual subjects, confidentiality of data, and and implement child care policies and relationship with an outside research consent procedures, as appropriate; programs that promote positive organization or university. The • Includes an effective plan for the outcomes for children, families and proposed staff of analysts must have dissemination and utilization of communities. extensive expertise in strategic information by researchers, policy- The primary goal is to create a planning, developing cross-disciplinary makers, and practitioners in the field; statewide research infrastructure to and cross-agency partnerships, and, better understand child care needs, implementing systems improvements, • Effectively utilizes collaborative services, and outcomes for families in using large administrative data sets for strategies, as appropriate to the project the context of social, economic and research and analysis, and evaluating goals and design. cultural change. Specific objectives the implications of research findings for Criterion 3: Approach (Management include to: (1) Improve the collection, policy and program decisions. The grant Plan) (maximum of 20 points). analysis, interpretation, and reporting of awards will fund salaries and other The extent to which the project CCDF data; (2) develop or improve expenses, including travel, for at least summary provides a management plan analytic linkages with other State and two full-time professional positions that: local data systems such as those within an analysis unit. • Presents a sound, workable and maintained by child care licensing B. Background Information cohesive plan of action demonstrating offices, TANF agencies, and resource how the work would be carried out on and referral networks; (3) encourage The Personal Responsibility and Work time, within budget and with a high collaborative efforts among institutions Opportunity Act of 1996 made degree of quality; of higher education, research substantial changes in the structure of • Includes a reasonable schedule of organizations, policy makers, Federal child care assistance by target dates and accomplishments; practitioners, and other stakeholders to combining four major Federal child care • Presents a sound administrative promote high quality research; (4) programs into the Child Care and framework for maintaining quality expand the availability of child care Development Fund (CCDF). While control over the implementation and research that is specifically responsive States have significant flexibility in ongoing operations of the study; and, to the needs of States and local designing and implementing child care • Demonstrates the ability to gain communities; (5) develop leadership programs under CCDF, they are required access to necessary organizations, skills in management and interpretation to meet certain statutory and regulatory subjects, and data. of data; and (6) demonstrate effective requirements. Among other Criterion 4: Applicant Profiles dissemination strategies and means for requirements, this includes the (Applicant Qualifications and informing policy decisions with designation of a State Lead Agency, Commitment) (maximum of 10 points). research results. biennial State CCDF Plans that describe The extent to which the scholar and Beginning with an assessment of its how CCDF services will be advisor: current CCDF administrative data implemented, and the submission of • Demonstrate competence in areas systems and research needs, each State aggregate and case-level data about the addressed by the proposed research, funded under this priority area will services provided through CCDF.
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States must spend at least 70 percent believed to improve care (e.g., provider and Work Opportunity Reconciliation of their CCDF dollars to provide child accreditation, teacher training and Act of 1996 and the Balanced Budget care services for families who are on or education, reimbursement rates), the Act of 1997. transitioning off TANF or who are at- types of arrangements used by low- D. Number of Awards risk of welfare dependency. Through the income parents, and their utilization of use of certificates (vouchers), eligible child care subsidies. By linking CCDF Up to three State Child Care Data and families must be given access to child data with employment, resource and Research Capacity Grants will be funded care services comparable to those referral, and licensing data sources, the in Fiscal Year 2002, subject to the available to families who are not eligible Partnerships have been able to study availability of funds and results of the for CCDF assistance. States may also such topics as the relationship between evaluation process. provide child care services through availability of subsidized care and entry E. Project Duration, Funding Levels, and contracts/grants with providers. In their into the job market, the industries/ Budget Periods biennial plans to ACF, States provide employers likely to have employees information about their policies on who receive child care assistance, and State Child Care Data and Research issues such as family eligibility limits, the interrelationships between Capacity Grants will be awarded for co-payments, provider reimbursement regulations and supply of care. project periods of up to three years. The rates, and provider health and safety However, administrators indicate that Child Care Bureau expects to invest up requirements. they face many barriers to using child to $250,000 during the initial 12-month States must submit aggregate reports care research and data to inform their funding period for each project. Non- to ACF annually. These reports include decisions. In an exploration of the competitive applications for information on the number of child care research needs of State child care continuation of State Child Care Data providers (by type) that received administrators, the Oregon Child Care and Research Capacity Projects will be funding under CCDF, the number of Research Partnership conducted a considered in fiscal years 2003 and 2004 children served by type of payment and national research roundtable that with up to $250,000 per project being child care services, consumer education, involved a number of State child care available for a 12-month period. and the total unduplicated number of administrators. That study, reported in Applications for continuation grants children and families served. Monthly an issue brief, Research and Child Care funded beyond the 12-month budget case-level reports (sample or full- Policy: A View from the States, found period, but within the 36-month project population at State option) may be that administrators were much more period, will be entertained in the submitted by States on a monthly or likely to be influenced by research subsequent year on a noncompetitive quarterly basis. These reports are conducted by their own agency as basis, subject to the availability of funds submitted electronically to ACF via opposed to an outside organization. from future appropriations, satisfactory CONNECT:DIRECT, a secure line When asked about barriers to using progress of the grantee, and a administered through the Social research, administrators most frequently determination that continued funding is Security Administration. The case-level indicated that their agency was not able in the best interest of the government. reports include total monthly family to conduct the kinds of research that The project period for three-year grants income for determining eligibility, would be useful in making policy and is from September 30, 2002–September county of residence, child gender and program decisions. The issue brief 29, 2005. month and year of birth, ethnicity and strongly recommends that research F. Federal Share race of children, whether the head of the capacity be developed at national, State, family is a single parent, sources of and local levels and that funds be To maximize the Federal investment family income, month/year when child directed to States to help States develop in the State Child Care Data and care assistance started, type of child the infrastructure to conduct child care Research Capacity Projects and in the care used and whether the provider was policy-relevant research starting with interest of project sustainability, a a relative, monthly family co-payment, the data required under Federal CCDF financial commitment by the applicant monthly amount to be paid to the reporting requirements. organization (or other participating provider, total hours of care in the Therefore, in this priority area, the entity) is required. The grantee must month, Social Security Number of the Child Care Bureau seeks to work with provide at least 20 percent of the total head of household (if voluntarily States to improve the reliability of approved cost of the project. The total provided), and reasons for care. administrative data collected in the approved cost is the sum of the Federal These aggregate and case-level CCDF course of providing CCDF services, to share and the non-Federal share. reports are an important source of assist States in improving their ability to Therefore, a project requesting $250,000 information about national, State, and analyze and interpret the data they per budget period must include a match local child care services and systems collect, and to encourage State-level of at least $62,500. (To calculate the 20 including child care supply and policy-relevant research. As a result, percent non-Federal share, divide the demand. As the Child Care Policy States will have improved information Federal Share by 4.) A project receiving Research Consortium and Research on which to make policy and program the maximum $750,000 during the Partnerships have demonstrated, when decisions and, nationally, the Child three-year project period must include a analyzed and readily-accessible, Care Bureau will be better able to meet match of at least $187,500 for the three- administrative data can be a valuable its obligation to report to Congress year project period. The total requested tool in helping policy makers make regarding the services provided under budget equals the Federal plus non- child care policy and program CCDF. Federal share. Applicants are decisions. Through their analysis of encouraged to meet their match CCDF administrative data at the cross- C. Eligible Applicants requirements through cash State, State, and local levels, the State and Territorial Lead Agencies contributions. However, the non-Federal Partnerships are advancing our administering child care programs share may be in-kind contributions. knowledge about the child care choices under the Child Care and Development Grantees will be held accountable for parents make, the supply of care in low- Block Grant (CCDBG) of 1990 as the commitment of non-Federal income neighborhoods, practices amended by the Personal Responsibility resources and failure to provide the
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required amount will result in a Environmental Tobacco Smoke information, and the types of data disallowance of unmatched Federal c. Table of Contents required or requested by these agencies, funds. d. Project Abstract organizations or groups. e. Project Narrative Statement Applicants are expected to describe G. Other Financial Requirements f. Appendices the current structure, management, and • Funds available under this priority Contact Information for all Key Staff process for collecting, analyzing and • area may not be used to pay for existing Resumes reporting data. This description should positions currently funded using • Letters of Support, if appropriate • include a consideration of the strengths Federal, State, or local money. In Other and weaknesses of the current operating addition, applicants are advised that 2. Project Narrative Statement system and analytic components. The funds under this priority are not need for assistance should be clearly The project narrative statement intended to support the purchase of stated. contains most of the information on computer hardware or software. In addition, applicants should which applications will be describe the research and evaluation H. Data Ownership competitively reviewed. The Project that would be conducted by the Narrative should be carefully developed Raw data are the property of the proposed analysis unit. Applicants are in accordance with the research goals agency or organization where the data encouraged to identify specific research and expectations described for the reside. Working data files constructed questions to be addressed by the unit priority area in which the applicant is for research belong to the grantee that is and explain how the agency’s data submitting a proposal, the requirements carrying-out the research, but analyses systems would be used to answer these listed below and described in the of those data may not be released questions. without the approval of the agency that Uniform Project Description (Appendix owns the original data. Once a study has 2 in this announcement), and the Specific Review Criteria evaluation criteria and selection factors been completed and released, clean, • Extent to which the applicant described in section ‘‘J’’ below. documented public use files must be describes current methods and systems The following sections from the prepared and archived according to used by the agency to collect and Uniform Project Description (Appendix specifications supplied by the Child compile the child care data required by 2) should be included in the Project Care Bureau. These public use data files the State and Federal government Narrative Statement of the application will be the property of the Federal (including data sources, inputs, and for State Child Care Data and Research government and will remain in the reports) and describes the strengths and Capacity projects: public domain for secondary analysis by weaknesses of these systems. Linkages other researchers. a. Objectives and Need for Assistance to TANF, licensing, and resource and b. Approach referral systems should be described. I. Project Description and Application c. Organizational Profiles • Extent to which the applicant Requirements • Management Plan • proposes activities which reflect the 1. Contents and Format of Application Staff Qualification and Commitment Administration for Children and Clarity and conciseness are of utmost • Organizational Capacity and Families and the Child Care Bureau’s importance. ACYF strongly encourages research agenda and priorities. Resources • applicants to limit their application to d. Budget and Budget Justification Extent to which the applicant 100 pages, double-spaced, with standard proposes a coherent approach to one-inch margins and 12 point fonts. J. Evaluation Criteria assessing the current quality of CCDF The total page limitation applies to both The following criteria will be used to data, including the validity and the narrative text and supporting review and evaluate each application reliability of the data as well as the materials. under this priority area. Each of the procedures and policies in place for Applicants are cautioned to include criteria should be addressed in the collection, analyses and interpretation all required forms and materials, project description section of the of the data. organized according to the required application. The point values indicate • Extent to which the applicant format. (The description of the contents the maximum numerical weight each describes the internal and external of the application materials listed below criterion will be accorded in the review information needs of the agency, is included in Appendix 1 of this process. Note that the highest possible constituencies for information, and the announcement.) The application packet score an application can receive is 100 types of data required or requested by must include the following items in points. these agencies, organizations or groups. order: Criterion 1: Objectives and Need for • Extent to which the goals and a. Cover Letter Assistance (35 Points). objectives of the proposed analysis unit b. Standard Federal Forms In this section, applicants are are explained clearly and are • Standard Application for Federal expected to provide a clear and appropriate to this priority area, i.e., Assistance (forms 424 and 424A) comprehensive description of their how the proposed unit would assist the • Assurances: Non-construction agency’s current capacity to collect, agency in improving the State’s capacity Programs (form 424B) analyze and report child care to meet internal and external • Certifications regarding Lobbying administrative data. This description information needs and its capacity for • Disclosures of Lobbying Activities should include data collection, analysis data collection, analysis, interpretation, • Certification regarding Drug-free and reporting required by the State and and reporting. Workplace Requirements Federal governments, as well as reports • Extent to which the applicant • Certification regarding Debarment, designed for the legislature and other presents a clear vision of the data Suspension, and other constituencies. Applicants are analysis systems to be developed, Responsibility Matters encouraged to provide a description of including a discussion of the contextual • Protection of Human Subjects the internal and external information factors that would facilitate or hinder • Certification regarding needs of the agency, constituencies for the formation of the analysis unit.
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• Extent to which the applicant’s Criterion 1 above. This should include • Extent to which the design for any vision for a Statewide infrastructure for a detailed plan that identifies goals and proposed studies appropriately link child care research and analysis is well objectives, relates those goals and critical research issues, questions, conceptualized, feasible, and could objectives to the strengths and weakness variables, data sources, samples, and continue evolving after the project identified regarding the State’s current analyses; employ technically sound and period ends. methods and systems used to collect appropriate approaches; reflect • Extent to which the applicant and compile administrative data, and sensitivity to technical, logistical, presents realistic examples of the provides a work plan identifying cultural and ethical issues that may research questions to be addressed, the specific activities necessary to arise; include realistic strategies for the types of studies to be conducted by the accomplish the stated goals and resolution of difficulties; adequately proposed analysis unit, and explains objectives. The plan must demonstrate protect human subjects, confidentiality how these research questions and that each of the project objectives and of data, and consent procedures, as studies relate to State child care activities support the needs identified appropriate; include an effective plan research priorities as well as the and can be accomplished with the for dissemination and utilization of the priorities and questions outlined in this available or expected resources during data; and effectively utilize announcement. the proposed project period. collaborative strategies, as appropriate • Extent to which the applicant For any research that is proposed to the project goals and design. explains how the proposed research, within the project period, a • Extent to which the implementation evaluations and studies would methodological discussion must be plan provides an appropriate and contribute to the development of provided that includes technical details feasible method for institutionalizing knowledge about the relationship of the proposed research design, and sustaining the analytic unit after between child care policies and including: (1) Conceptual framework for Federal funding has ceased. programs and outcomes for children and the research; (2) research questions, Additional Information families. hypotheses and variables; (3) data • Extent to which the applicant sources; (4) linkages with other 1. Conceptual Framework for the describes how the findings from the research; (5) data processing and Research proposed studies would be used to statistical analysis; and (6) product Based on the issues and objectives inform policy and improve the quality development and information described in Criterion 1, present the of services. dissemination. (For more details, see • conceptual framework for the proposed Extent to which the applicant below.) research, including the approach to be clearly describes the types of products When specific studies are proposed, taken and why this approach was that would be produced by the analysis applicants are asked to provide a flow chosen. unit and the benefits that the State and chart or table showing the other constituencies would derive from interrelationships among the proposed 2. Research Questions, Hypotheses and these reports and products. research issues, questions, variables, Variables Criterion 2: Approach (30 Points). and data elements. Based on the conceptual framework In this section, applicants are for the research, present: (1) Areas of Specific Review Criteria expected to describe in detail how they inquiry to be explored; (2) specific will implement the proposed analysis • Extent to which the applicant research questions and hypotheses; and unit, improve the State’s capacity for presents an informed assessment of the (3) research variables and constructs. collection, analysis, interpretation, and advantages and disadvantages of an in- This discussion should relate back to reporting of data, and conduct child house analysis unit versus a contractual the earlier discussion of Objectives and care policy-relevant research. partner. Need (I, 2, a) and lead into the design Applicants are advised to present their • Extent to which the justification for elements that follow. assessment of the advantages and selecting the proposed approach is disadvantages of an in-house analysis explained in detail, including a 3. Data Sources and Sampling Plan unit versus a contractual partner. description of how the chosen approach This section should include a detailed Applicants should describe why they will mesh with current information plan for identifying data sources and have selected one approach over the demands, operations and procedures, obtaining an appropriate sample to other. The justification should include a management structure, staffing and achieve objectives of the proposed description of how the chosen approach other resources. research. will integrate current information • Extent to which a coherent 4. Linkages With Other Research demands, operations and procedures, approach to improving the quality of management structure, staffing and CCDF data is embedded within the If the proposed project would involve other resources. scope of the overall capacity-building. linkage with ongoing research, describe Regardless of the approach selected • Extent to which the proposed the ongoing research design and status, (in-house or contractual), the applicant implementation plan describes the how the proposed study would benefit is expected to present an function and scope of activities and from and contribute to it, how the implementation plan and describe in indicates when the objectives and major technical aspects of the linkage would detail how the unit will be established, activities under each objective will be be structured and carried out, and how managed, operated and evaluated. This accomplished. the linked studies would address the section should also include a plan for • Extent to which the selected goals of this announcement. Describe sustaining the unit after Federal funding approach and implementation plan are how the proposed research will make a has ceased. appropriate and feasible and will build distinct contribution while building on This section of the Project Narrative an analytic capacity for the agency; the ongoing research. Include a letter of Statement also requires that the description should present a feasible cooperation from the individual/ applicant describe the technical method for identifying research organization conducting the research approach for addressing issues and priorities, and determining research which details the status of the data achieving the objectives described in studies to be conducted. collection, procedures to ensure data
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quality, timeliness of data availability responsibilities and time commitments and the positions they will fill. and applicant access. of each proposed staff position, Applicants are also expected to describe including consultants, subcontractors the educational background and 5. Data Processing and Statistical and/or partners. The plan should professional experience of other Analysis include a list of organizations and professionals who will form the Include a detailed plan for processing consultants who will work with the interdisciplinary analysis unit or and analyzing data from all sources program along with a short description organization. (Brief resumes should be which illustrates how the analyses will of the nature of their effort or provided.) The proposed staff should meet the goals of this research. Discuss contribution. include persons with educational the procedures which would be used to Applicants are expected to have the backgrounds and professional clean data, ensure data quality, and project fully staffed and ready for experiences in early childhood services, prepare data tapes. Discuss plans for the implementation as quickly as possible child development, social work, public analysis of data, including units of after notification of the grant award. policy, economics and other social analysis, analytic techniques to be used Therefore, strategies for ensuring timely science disciplines such that the with various types of data, statistical staffing and implementation should be analysis unit or organization will be considerations including, but not clearly and succinctly presented in the able to conduct research on a broad limited to power analysis, attrition, management plan. The narrative should range of child care issues and response rates, etc., and the linkage of include a description of the timeline for approaches. data sets, where appropriate. Describe hiring and procurement in the State, documentation of the final data set and and methods that the applicant will use Specific Review Criteria preparation of data for archiving by the to expedite the process. • Extent to which the proposed Child Care Bureau. Applicants are also expected to project director, key project staff produce a timeline that presents a 6. Product Development and (including analysts to be hired) and reasonable schedule of target dates, Information Dissemination consultants have the necessary technical accomplishments and deliverables by skill, knowledge and experience to Include a product development quarter. The timeline should include the successfully carry out their schedule and information dissemination sequence and timing of the major tasks responsibilities. plan which describes the products to be and subtasks, important milestones, • Extent to which staffing is adequate generated during the course of this reports, and completion dates. The for the proposed project, including research (such as technical papers or proposal should also discuss factors that administration, program operations, reports, summaries, briefings, may affect project implementation or data collection and analysis, reporting conference presentations, doctoral the outcomes and present realistic and dissemination of findings. dissertations, journal articles, internet strategies for the resolution of these • Extent to which the applicant applications, software and public use difficulties. For instance, downtime due demonstrates executive level support data tapes, and the final report). to staff vacancies at start should be and commitment from within the CCDF Describe the audiences for various reflected. Additionally, if appropriate, Lead Agency. products and the dissemination applicants should present a plan for Organizational Capacity and strategies that will be employed. Discuss training project staff, as well as staff of Resources (5 Points). which products might be collaboratively cooperating organizations. developed or disseminated to intended Overview audiences. Specific Review Criteria Applicants must show that they have Criterion 3: Organization Profiles (25 • Extent to which the management the organizational capacity and Points). plan provides a diagram showing the resources to form, manage, operate, Applicants need to demonstrate that organizational structure of the project evaluate and sustain an analysis unit, they have the capacity to implement the and the functional relationships among including the capacity to resolve a wide proposed project. This criterion consists components. of three broad topics: (1) management • Extent to which the management variety of technical and management plan, (2) staff qualifications and plan presents a realistic approach to problems that may occur. If the proposal commitment, and (3) organizational achieving the objectives of the proposed involves partnering and/or capacity and resources. project on time and within budget, subcontracting with other agencies/ Management Plan (10 Points). including clearly-defined organizations, then the proposal should include an organizational capability Overview responsibilities, timelines and milestones for accomplishing project statement for each participating Applicants are expected to present a tasks. organization documenting the ability of sound and feasible management plan for • Extent to which the roles and the partners and/or subcontractors to implementing the analysis unit. This responsibilities of the lead agency are carry out their assigned roles and section should detail how the unit will clearly defined and the time functions. be structured and managed, how the commitments of the project director and Specific Review Criteria timeliness of activities will be ensured, other key project personnel are • how quality control will be maintained, appropriate and adequate to meet the Extent to which the applicant and how costs will be controlled. The objectives of the proposed project. organization and partnering role and responsibilities of the lead Staff Qualifications and Commitment organizations collectively have agency should be clearly defined and, if (10 Points). experience and resources required to appropriate, applicants should discuss form, manage, operate and sustain an the management and coordination of Overview analysis unit. activities carried out by any partners, In this section, applicants should • Extent to which the applicant has subcontractors and consultants. describe the qualifications of the project adequate organizational resources for Applicants are required to provide a manager and key staff, including the proposed project, including plan that describes the role, analysts who will staff the analysis unit administration, program operations,
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data processing and analysis, reporting organized according to the required profit status in the application at the and dissemination of findings. format. The application packet must time of submission. The applicant can Criterion 4: Budget and Budget include the following items in order: demonstrate proof of non-profit status in Justification (10 Points). 1. A cover letter that includes the any one of three ways: Describe the nature and extent of announcement number, priority area a. By providing a copy of the financial participation from all sources and contact information. organization’s listing in the Internal during the proposed project period. 2. Standard Federal Forms. Revenue Service’s (IRS) most recent list Present a detailed budget for each 12- a. Standard Application for Federal of tax-exempt organizations described in month interval of the proposed project Assistance (SF 424 fact sheet and SF Section 501(c3) of the IRS code; period, i.e., the 12 month budget period 424A) must be included with the b. By providing a copy of the to be funded under this announcement application. currently valid IRS tax exemption and subsequent budget periods that may b. Standard Form 424B, ‘‘Assurances: certificate; or be funded under a non-competing Non-Construction Programs.’’ c. By providing a copy of the articles continuation process. Include a detailed Applicants must sign and return the of incorporation bearing the seal of the budget narrative that describes and Standard Form 424B with their State in which the corporation or justifies line item expenses within the applications. association is domiciled. c. Certifications Regarding Lobbying. object class categories listed on the 4. Executive Order 12372—Single Applicants must provide a certification Standard Form 424A. (Line item Point of Contact. allocations and justification are required regarding lobbying when applying for This program is covered under for both Federal and non-Federal funds.) an award in excess of $100,000. Executive Order 12372, If project funds will be subcontracted, a Applicants must sign and return the ‘‘Intergovernmental Review of Federal detailed budget for the use of those certification with their applications. Programs’’, and 45 CFR part 100, funds must be also included. In d. Disclosure of Lobbying Activities. ‘‘Intergovernmental Review of estimating costs, applicant should Applicants must disclose lobbying Department of Health and Human consider down time due to staff activities on the Standard Form LLL Services Program and Activities’’. Under vacancies, administrative processes, etc. when applying for an award in excess The proposed budget should include of $100,000. Applicants who have used the Order, States may design their own sufficient funding to cover travel non-Federal funds for lobbying processes for reviewing and expenses for a key person from the activities in connection with receiving commenting on proposed Federal project and the evaluator to attend two assistance under this announcement assistance under covered programs. two-and-a-half day meetings of grantees shall complete a disclosure form to All States and Territories except in the Washington DC area hosted by report lobbying. Applicants must sign Alabama, Alaska, Colorado, the Child Care Bureau. Attendance at and return the disclosure form, if Connecticut, Hawaii, Idaho, Kansas, these meetings is a grant requirement. applicable, with their applications. Louisiana, Massachusetts, Minnesota, e. Certification Regarding Drug-Free Montana, Nebraska, New Jersey, Ohio, Specific Review Criteria Workplace Requirements. Applicants Oklahoma, Oregon, Pennsylvania, South • Extent to which the costs of the must make the appropriate certification Dakota, Tennessee, Vermont, Virginia, proposed program are reasonable in of their compliance with the Drug-Free Washington, American Samoa and view of the activities to be carried out, Workplace Act of 1988. By signing and Palau have elected to participate in the that funds are appropriately allocated submitting the application, the Executive Order process and have across component areas, and that the applicant is providing the certification established Single Points of Contact budget is sufficient to accomplish the and need not mail back the certification (SPOCs). Applicants from these twenty- objectives. four jurisdictions need take no action • with the application. Extent to which the applicant f. Certification Regarding Debarment, regarding E.O. 12372. Applicants for demonstrates that it has sufficient fiscal Suspension, and Other Responsibility projects to be administered by and accounting capacity to ensure Matters. Applicants must make the Federally-recognized Indian Tribes are prudent use, proper disbursement, and appropriate certification that they are also exempt from the requirements of accurate accounting of funds. E.O. 12372. Otherwise, applicants • not presently debarred, suspended, or Extent to which applicant’s budget otherwise ineligible for an award. By should contact their SPOCs as soon as is sufficient to endure that signing and submitting the application, possible to alert them of the prospective unanticipated problems can be resolved the applicant is providing the applications and receive any necessary and that the project will be completed certification and need not mail back the instructions. Applicants must submit on time and with a high degree of certification with the application. any required material to the SPOCs as quality. g. Protection of Human Subjects: soon as possible so that the program Part IV. Appendices Assurance, Identification, Certification, office can obtain and review SPOC and Declaration. comments as part of the award process. A. Appendix 1: Contents and Format of h. Certification Regarding It is imperative that the applicant the Application Environmental Tobacco Smoke. submit all required materials, if any, to Clarity and conciseness are of utmost Applicants must make the appropriate the SPOC and indicate the date of this importance. ACYF strongly encourages certification of their compliance. By submittal (or the date of contact if no applicants to limit their applications to signing and submitting the application, submittal is required) on the Standard 100 pages, double-spaced, with standard the applicant is providing the Form 424, item 16a. one-inch margins and 12 point fonts. certification and need not mail back the Under 45 CFR 100.8(a)(2), a SPOC has This includes the entire Project certification with the application. 60 days from the application deadline to Narrative Statement including text, 3. For-profit entities wishing to comment on proposed new or tables, charts, graphs, resumes, receive a grant directly must provide a competing continuation awards. corporate statements and appendices. letter indicating their willingness to SPOCs are encouraged to eliminate Applicants are encouraged to include waive their fees. Non-profit the submission of routine endorsements all required forms and materials, organizations must submit proof of non- as official recommendations.
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Additionally, SPOCs are requested to provided. Awarding offices use this and Approach clearly differentiate between mere other information in making their advisory comments and those official funding recommendations. It is Outline a plan of action which State process recommendations that important, therefore, that this describes the scope and detail of how may trigger the accommodation or information be included in the the proposed work will be explain rule. application. accomplished. Account for all functions When comments are submitted or activities identified in the General Instructions directly to ACF, they should be application. Cite factors which might addressed to: Alece Morgan, Office of ACF is particularly interested in accelerate or decelerate the work and Grants Management, 370 L’Enfant specific factual information and state your reason for taking the Promenade, SW., DC 20447, Attn: Child statements of measurable goals in proposed approach rather than others. Care Policy Research Discretionary quantitative terms. Project descriptions Describe any unusual features of the Grants. A list of the Single Points of are evaluated on the basis of substance, project such as design or technological Contact (SPOCs) for each State and not length. Extensive exhibits are not innovations, reductions in cost or time, Territory can be found on the following required. Cross referencing should be or extraordinary social and community web site: http://www.whitehouse.gov/ used rather than repetition. Supporting involvement. omb/grants/spoc.html. information concerning activities that Provide quantitative monthly or 5. Table of Contents will not be directly funded by the grant quarterly projections of the 6. Project Abstract (not to exceed one or information that does not directly accomplishments to be achieved for page) for use in official briefings, pertain to an integral part of the grant each function or activity in such terms decision packages, and public funded activity should be placed in an as the number of people to be served announcement of awards. appendix. and the number of activities 7. Project Narrative Statement (See Pages should be numbered and a table accomplished. When accomplishments instructions in Appendix 2 and of contents should be included for easy cannot be quantified by activity or Evaluation Criteria for each Priority reference. function, list them in chronological order to show the schedule of described in this announcement.) Introduction 8. Appendices: All supporting accomplishments and their target dates. materials and documents should be Applicants required to submit a full If any data is to be collected, organized into appropriate appendices project description shall prepare the maintained, and/or disseminated, and securely bound in to the application project description statement in clearance may be required from the U.S. package. Applicants are reminded that accordance with the following Office of Management and Budget the total page limitation applies to both instructions and the specified (OMB). This clearance pertains to any narrative text and supporting materials. evaluation criteria. The instructions give ‘‘collection of information that is a. Contact Information for all Key a broad overview of what your project conducted or sponsored by ACF.’’ description should include while the Staff List organizations, cooperating evaluation criteria expands and clarifies b. Resumes entities, consultants, or other key more program-specific information that c. Letters of Support, if appropriate individuals who will work on the is needed. d. Other project along with a short description of 9. Number of Copies and Binding: An Project Summary/Abstract the nature of their effort or contribution. original and two copies of the complete application packet must be submitted. Provide a summary of the project Evaluation Each copy of the application should be description (a page or less) with reference to the funding request. Provide a narrative addressing how securely stapled in the upper left-hand the results of the project and the corner, clipped, or secured at the top Objectives And Need For Assistance conduct of the project will be evaluated. with a two-hole punch fastener. Because Clearly identify the physical, In addressing the evaluation of results, each application will be duplicated for economic, social, financial, state how you will determine the extent the review panel, do not use non- institutional, and/or other problem(s) to which the project has achieved its removable binders. Do not include tabs, requiring a solution. The need for stated objectives and the extent to plastic inserts, brochures, videos, or any assistance must be demonstrated and which the accomplishment of objectives other items that cannot be photocopied. the principal and subordinate objectives can be attributed to the project. Discuss B. Appendix 2: Uniform Project of the project must be clearly stated; the criteria to be used to evaluate Description supporting documentation, such as results, and explain the methodology letters of support and testimonials from that will be used to determine if the Purpose concerned interests other than the needs identified and discussed are being The project description provides a applicant, may be included. Any met and if the project results and major means by which an application is relevant data based on planning studies benefits are being achieved. With evaluated and ranked to compete with should be included or referred to in the respect to the conduct of the project, other applications for available endnotes/footnotes. Incorporate define the procedures to be employed to assistance. The project description demographic data and participant/ determine whether the project is being should be concise and complete and beneficiary information, as needed. In conducted in a manner consistent with should address the activity for which developing the project description, the the work plan presented and discuss the Federal funds are being requested. applicant may volunteer or be requested impact of the project’s various activities Supporting documents should be to provide information on the total on the project’s effectiveness. included where they can present range of projects currently being Additional Information information clearly and succinctly. In conducted and supported (or to be preparing your project description, all initiated), some of which may be Following are requests for additional information requested through each outside the scope of the program information that need to be included in specific evaluation criteria should be announcement. the application:
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Staff And Position Data justification. Both Federal and non- unit price of an item of equipment, Provide a biographical sketch for each Federal resources shall be detailed and including the cost of any modifications, key person appointed and a job justified in the budget and narrative attachments, accessories, or auxiliary description for each vacant key position. justification. For purposes of preparing apparatus necessary to make it usable A biographical sketch will also be the budget and budget justification, for the purpose for which it is acquired. required for new key staff as appointed. ‘‘Federal resources’’ refers only to the Ancillary charges, such as taxes, duty, ACF grant for which you are applying. protective in-transit insurance, freight, Organizational Profiles Non-Federal resources are all other and installation shall be included in or Provide information on the applicant Federal and non-Federal resources. It is excluded from acquisition cost in organization(s) and cooperating partners suggested that budget amounts and accordance with the organization’s such as organizational charts, financial computations be presented in a regular written accounting practices.) statements, audit reports or statements columnar format: first column, object Justification: For each type of from CPAs/Licensed Public class categories; second column, Federal equipment requested, provide a Accountants, Employer Identification budget; next column(s), non-Federal description of the equipment, the cost Numbers, names of bond carriers, budget(s), and last column, total budget. per unit, the number of units, the total contact persons and telephone numbers, The budget justification should be a cost, and a plan for use on the project, child care licenses and other narrative. as well as use or disposal of the documentation of professional equipment after the project ends. An Personnel accreditation, information on applicant organization that uses its own compliance with Federal/State/local Description: Costs of employee definition for equipment should provide government standards, documentation salaries and wages. a copy of its policy or section of its of experience in the program area, and Justification: Identify the project policy which includes the equipment other pertinent information. Any non- director or principal investigator, if definition. profit organization submitting an known. For each staff person, provide Supplies application must submit proof of its the title, time commitment to the project non-profit status in its application at the (in months), time commitment to the Description: Costs of all tangible time of submission. project (as a percentage or full-time personal property other than that The non-profit agency can accomplish equivalent), annual salary, grant salary, included under the Equipment category. this by providing a copy of the wage rates, etc. Do not include the costs Justification: Specify general applicant’s listing in the Internal of consultants or personnel costs of categories of supplies and their costs. Revenue Service’s (IRS) most recent list delegate agencies or of specific Show computations and provide other of tax-exempt organizations described in project(s) or businesses to be financed information which supports the amount Section 501(c)(3) of the IRS code, or by by the applicant. requested. providing a copy of the currently valid Fringe Benefits Contractual IRS tax exemption certificate, or by providing a copy of the articles of Description: Costs of employee fringe Description: Costs of all contracts for incorporation bearing the seal of the benefits unless treated as part of an services and goods except for those State in which the corporation or approved indirect cost rate. which belong under other categories association is domiciled. Justification: Provide a breakdown of such as equipment, supplies, the amounts and percentages that construction, etc. Third-party evaluation Letters of Support comprise fringe benefit costs such as contracts (if applicable) and contracts Provide statements from community, health insurance, FICA, retirement with secondary recipient organizations, public and commercial leaders that insurance, taxes, etc. including delegate agencies and specific project(s) or businesses to be financed support the project proposed for Travel funding. All submissions should be by the applicant, should be included included in the application OR by Description: Costs of project-related under this category. application deadline. travel by employees of the applicant Justification: All procurement organization (does not include costs of transactions shall be conducted in a Budget and Budget Justification consultant travel). manner to provide, to the maximum Provide line item detail and detailed Justification: For each trip, show the extent practical, open and free calculations for each budget object class total number of traveler(s), travel competition. Recipients and identified on the Budget Information destination, duration of trip, per diem, subrecipients, other than States that are form. Detailed calculations must mileage allowances, if privately owned required to use Part 92 procedures, must include estimation methods, quantities, vehicles will be used, and other justify any anticipated procurement unit costs, and other similar quantitative transportation costs and subsistence action that is expected to be awarded detail sufficient for the calculation to be allowances. Travel costs for key staff to without competition and exceed the duplicated. The detailed budget must attend ACF-sponsored workshops simplified acquisition threshold fixed at also include a breakout by the funding should be detailed in the budget. 41 U.S.C. 403(11) (currently set at sources identified in Block 15 of the SF– Equipment 100,000). Recipients might be required 424. to make available to ACF pre-award Provide a narrative budget Description: ‘‘Equipment’’ means an review and procurement documents, justification that describes how the article of nonexpendable, tangible such as request for proposals or categorical costs are derived. Discuss personal property having a useful life of invitations for bids, independent cost the necessity, reasonableness, and more than one year and an acquisition estimates, etc. allocability of the proposed costs. cost which equals or exceeds the lesser Note: Whenever the applicant intends to of (a) the capitalization level established General delegate part of the project to another agency, by the organization for the financial the applicant must provide a detailed budget The following guidelines are for statement purposes, or (b) $5,000. (NOTE: and budget narrative for each delegate preparing the budget and budget Acquisition cost means the net invoice agency, by agency title, along with the
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required supporting information referred to Dated: April 25, 2002. desiring to make formal oral in these instructions. James A. Harrell, presentations should notify the contact Deputy Commissioner, Administration on person before May 10, 2002, and submit Other Children, Youth and Families. a brief statement of the general nature of Enter the total of all other costs. Such [FR Doc. 02–10781 Filed 4–30–02; 8:45 am] the evidence or arguments they wish to costs, where applicable and appropriate, BILLING CODE 4184–01–U present, the names and addresses of may include but are not limited to proposed participants, and an insurance, food, medical and dental indication of the approximate time DEPARTMENT OF HEALTH AND costs (noncontractual), professional requested to make their presentation. HUMAN SERVICES Persons attending FDA’s advisory services costs, space and equipment committee meetings are advised that the rentals, printing and publication, Food and Drug Administration agency is not responsible for providing computer use, training costs, such as access to electrical outlets. tuition and stipends, staff development Anesthetic and Life Support Drugs FDA welcomes the attendance of the costs, and administrative costs. Advisory Committee; Notice of Meeting public at its advisory committee Justification: Provide computations, a AGENCY: Food and Drug Administration, meetings and will make every effort to narrative description and a justification HHS. accommodate persons with physical for each cost under this category. ACTION: Notice. disabilities or special needs. If you require special accommodations due to Indirect Charges This notice announces a forthcoming a disability, please contact Kimberly Description: Total amount of indirect meeting of a public advisory committee Topper at least 7 days in advance of the costs. This category should be used only of the Food and Drug Administration meeting. when the applicant currently has an (FDA). The meeting will be open to the Notice of this meeting is given under indirect cost rate approved by the public. the Federal Advisory Committee Act (5 Name of Committee: Anesthetic and Department of Health and Human U.S.C. app. 2). Life Support Drugs Advisory Services (HHS) or another cognizant Dated: April 24, 2002. Committee. Federal agency. General Function of the Committee: Linda A. Suydam, Justification: An applicant that will To provide advice and Senior Associate Commissioner for charge indirect costs to the grant must recommendations to the agency on Communications and Constituent Relations. enclose a copy of the current rate FDA’s regulatory issues. [FR Doc. 02–10708 Filed 4–30–02; 8:45 am] agreement. If the applicant organization Date and Time: The meeting will be BILLING CODE 4160–01–S is in the process of initially developing held on May 16, 2002, from 8 a.m. to 5 or renegotiating a rate, it should p.m. immediately upon notification that an Location: Holiday Inn, The Ballrooms, DEPARTMENT OF HEALTH AND award will be made, develop a tentative Two Montgomery Village Ave., HUMAN SERVICES Gaithersburg, MD. indirect cost rate proposal based on its National Institutes of Health most recently completed fiscal year in Contact Person: Kimberly Littleton accordance with the principles set forth Topper, Center for Drug Evaluation and National Cancer Institute; Notice of in the cognizant agency’s guidelines for Research (HFD–21), Food and Drug Meeting establishing indirect cost rates, and Administration, 5600 Fishers Lane, (for submit it to the cognizant agency. express delivery, 5630 Fishers Lane, rm. Pursuant to section 10(a) of the Applicants awaiting approval of their 1093) Rockville, MD 20857, 301–827– Federal Advisory Committee Act, as indirect cost proposals may also request 7001, or FDA Advisory Committee amended (5 U.S.C. Appendix 2), notice indirect costs. It should be noted that Information Line, 1–800–741–8138 is hereby given of a meeting of the when an indirect cost rate is requested, (301–443–0572 in the Washington, DC National Cancer Institute Director’s those costs included in the indirect cost area), code 12529. Please call the Consumer Liaison Group. pool should not also be charged as Information Line for up-to-date The meeting will be open to the direct costs to the grant. Also, if the information on this meeting. public, with attendance limited to space applicant is requesting a rate which is Agenda: The committee will discuss available. Individuals who plan to less than what is allowed under the specific issues in the development of attend and need special assistance, such program, the authorized representative pharmaceuticals for the treatment of as sign language interpretation or other of the applicant organization must neuropathy and neuropathic pain. Areas reasonable accommodations, should submit a signed acknowledgement that for discussion will include duration of notify the Contract Person listed below the applicant is accepting a lower rate clinical trials, evaluation of nerve in advance of the meeting. than allowed. function, value of electrophysiological Name of Committee: National Cancer endpoints, appropriate clinical Institute Director’s Consumer Liaison Group. Nonfederal Resources endpoints, and appropriateness of Date: May 9, 2002. general and specific claims. Time: 1 p.m. to 4 p.m. Description: Amounts of non-Federal Procedure: Interested persons may Agenda: To debrief on April 2002 meeting resources that will be used to support present data, information, or views, and to get updates from the Working Groups. the project as identified in Block 15 of orally or in writing, on issues pending Place: 6116 Executive Blvd., Rockville, MD the SF–424. before the committee. Written 20852, (Telephone Conference Call). Justification: The firm commitment of submissions may be made to the contact Contact Person: Elaine Lee, Executive Secretary, Office of Liaison Activities, these resources must be documented person by May 10, 2002. Oral National Institutes of Health, National Cancer and submitted with the application in presentations from the public will be Institute, 6116 Executive Boulevard, Suite order to be given credit in the review scheduled between approximately 1 300 C, Bethesda, MD 20892, 301/594–3194. process. A detailed budget must be p.m. and 2 p.m. Time allotted for each This notice is being published less than 15 prepared for each funding source. presentation may be limited. Those days prior to the meeting due to the timing
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limitations imposed by the review and The meeting will be closed to the discussions could disclose confidential funding cycle. public in accordance with the trade secrets or commercial property Information is also available on the provisions set forth in sections such as patentable material, and Institute’s/Center’s home page: 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., personal information concerning deainfo.nih.gov/advisory/dclg/dclg.htm, as amended. The contract proposals and individuals associated with the grant where an agenda and any additional the discussions could disclose applications and/or contract proposals, information for the meeting will be posted when available. confidential trade secrets or commercial the disclosure of which would property such as patentable material, constitute a clearly unwarranted (Catalogue of Federal Domestic Assistance and personal information concerning invasion of personal privacy. Program Nos. 93.392, Cancer Construction; individuals associated with the contract Name of Committee: National Institute of 93.393, Cancer Cause and Prevention proposals, the disclosure of which Diabetes and Digestive and Kidney Diseases Research; 93.394, Cancer Detection and would constitute a clearly unwarranted Initial Review Group, Diabetes, Diagnosis Research; 93.395, Cancer invasion of personal privacy. Endocrinology and Metabolic Diseases B Treatment Research; 93.396, Cancer Biology Name of Committee: National Institute of Subcommittee. Research; 93.397, Cancer Centers Support; Date: June 18, 2002. 93.398, Cancer Research Manpower; 93.399, Diabetes and Digestive and Kidney Diseases Special Emphasis Panel, Loan Repayment. Open: 8 a.m. to 8:30 a.m. Cancer Control, National Institutes of Health, Agenda: To review procedures and discuss HHS) Date: May 14, 2002. Time: 1 p.m. to 2:30 p.m. policy. Dated: April 23, 2002. Agenda: To review and evaluate contract Place: Canterbury Hotel, 780 Sutter Street, LaVerne Y. Stringfield, proposals. San Francisco, CA 94109. Director, Office of Federal Advisory Place: 2 Democracy Plaza, 6707 Democracy Closed: 8:30 a.m. to adjournment. Committee Policy. Boulevard, Room 752, Bethesda, MD 20892. Agenda: To review and evaluate grant applications [FR Doc. 02–10675 Filed 4–30–02; 8:45 am] (Telephone Conference Call). Contact Person: Francisco O. Calvo, Chief, Place: Canterbury Hotel, 780 Sutter Street, BILLING CODE 4140–01–M Review Branch, DEA, NIDDK, Room 752, San Francisco, CA 94109. 6707 Democracy Boulevard, National Contact Person: Michele L. Barnard, Institutes of Health, Bethesda, MD 20892– Scientific Review Administrator, Review DEPARTMENT OF HEALTH AND 6600. (301) 594–8897. Branch, DEA NIDDK, National Institutes of HUMAN SERVICES (Catalogue of Federal Domestic Assistance Health, Room 657, 6707 Democracy Program Nos. 93.847, Diabetes Endocrinology Boulevard, Bethesda, MD 20892. 301/594– National Institutes of Health and Metabolic Research; 93.848, Digestive 8898. Diseases and Nutrition Research; 93.849, (Catalogue of Federal Domestic Assistance Kidney Diseases, Urology and Hematology National Institute of Mental health; Programs Nos. 93.847, Diabetes, Research, National Institutes of Health, HHS) Amended Notice of Meeting Endocrinology and Metabolic Research; Dated: April 23, 2002. 93.848, Digestive Diseases and Nutrition Notice is hereby given of a change in LaVerne Y. Stringfield, Research; 93.849, Kidney Diseases, Urology the meeting of the National Institute of and Hematology Research, National Institutes Mental Health Special Emphasis Panel, Director, Office of Federal Advisory Committee Policy of Health, HHS) March 28, 2002, 12 p.m. to March 28, [FR Doc. 02–10668 Filed 4–30–02; 8:45 am] Dated: April 23, 2002. 2002, 1 p.m., Neuroscience Center, LaVerne Y. Stringfield, National Institutes of Health, 6001 BILLING CODE 4140–01–M Director, Office of Federal Advisory Executive Blvd., Bethesda, MD, 20892 Committee Policy. which was published in the Federal DEPARTMENT OF HEALTH AND [FR Doc. 02–10669 Filed 4–30–02; 8:45 am] Register on March 29, 2002, 67 FR HUMAN SERVICES BILLING CODE 4140–01–M 15219. The meeting will be held on April 15, National Institutes of Health 2002 at 2 p.m. at the Neuroscience DEPARTMENT OF HEALTH AND Center. The meeting is closed to the National Institute of Diabetes and HUMAN SERVICES public. Digestive and Kidney Diseases; Notice Dated: April 23, 2002. of Meeting National Institutes of Health LaVerne Y. Stringfield, Pursuant to section 10(d) of the National Institute on Alcohol Abuse Director, Office of Federal Advisory Federal Advisory Committee Act, as and Alcoholism; Notice of Meeting Committee Policy. amended (5 U.S.C. Appendix 2), notice [FR Doc. 02–10667 Filed 4–30–02; 8:45 am] is hereby given of the following Pursuant to section 10(d) of the BILLING CODE 4140–01–M meeting. Federal Advisory Committee Act, as The meeting will be open to the amended (5 U.S.C. Appendix 2), notice public as indicated below, with is hereby given of a meeting of the DEPARTMENT OF HEALTH AND attendance limited to space available. Board of Scientific Counselors, NIAAA. HUMAN SERVICES Individuals who plan to attend and The meeting will be open to the need special assistance, such as sign public as indicated below, with National Institutes of Health language interpretation or other attendance limited to space available. National Institute of Diabetes and reasonable accommodations, should Individuals who plan to attend and Digestive and Kidney Diseases; Notice notify the Contact Person listed below need special assistance, such as sign Of Closed Meeting in advance of the meeting. language interpretation or other The meeting will be closed to the reasonable accommodations, should Pursuant to section 10(d) of the public in accordance with the notify the Contact Person listed below Federal Advisory Committee Act, as provisions set forth in sections in advance of the meeting. amended (5 U.S.C. Appendix 2), notice 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., The meeting will be closed to the is hereby given of the following as amended. The grant applications public as indicated below in accordance meeting. and/or contract proposals and the with the provisions set forth in section
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552b(c)(6), Title 5 U.S.C., as amended property such as patentable material, Name of Committee: National Institute of for the review, discussion, and and personal information concerning Child Health and Human Development evaluation of individual intramural individuals associated with the grant Special Emphasis Panel, Vitamin A and Zinc; programs and projects conducted by the Prevention of Pheumonia—Supplement. applications, the disclosure of which Date: May 3, 2002. National Institute on Alcohol Abuse and would constitute a clearly unwarranted Time: 12:30 p.m. to 1:30 p.m. Alcoholism, including consideration of invasion of personal privacy. Agenda: To review and evaluate grant personnel qualifications and Name of Committee: National Institute on applications. performance, and the competence of Alcohol Abuse and Alcoholism Special Place: 6100 Executive Blvd 5th Floor, individual investigators, the disclosure Emphasis Panel, R21 REVIEW PA–99–131. Rockville, MD 20852, (Telephone Conference of which would constitute a clearly Date: May 9, 2002. Call). unwarranted invasion of personal Time: 2 p.m. to 3 p.m. Contact Person: Gopal M. Bhatnagar, PhD, Scientific Review Administrator, Division of privacy. Agenda: to review and 4valuate grant applications. Scientific Review, National Institute of Child Name of Committee: Board of Scientific Place: Willco Building, Suite 409, 6000 Health, and Human Development, National Counselors, NIAAA. Executive Boulevard, Rockville, MD 20892, Institutes of Health, PHS, DHHS, 9000 Rockville Pike, 6100 Bldg., Room 5E01, Date: June 6, 2002. (Telephone Conference Call). Bethesda, MD 20892, (301) 496–1485. Open: 7:45 a.m. to 8 a.m. Contact Person: Sathasiva B. Kandasamy, Agenda: To Discuss Administrative This notice is being published less than 15 PhD, Scientific Review Administrator, Details. days prior to the meeting due to the timing Extramural Project Review Branch, Office of Place: Parklawn Building, The Potomac limitations imposed by the review and Scientific Affairs, National Institute on Conference Room, 5600 Fishers Lane, funding cycle. Alcohol, Abuse and Alcoholism, 6000 Rockville, MD 20857. (Catalogue of Federal Domestic Assistance Closed: 8 a.m. to 5:30 p.m. Executive Blvd., Suite 409, Bethesda, MD 20892–7003, (301) 443–2926, Program Nos. 93.209, Contraception and Agenda: To review and evaluate the Infertility Loan Repayment Program; 93.864, Laboratory of Molecular and Cellular [email protected]. This notice is being published less than 15 Population Research; 93.865, Research for Neurobiology, and the Section on Liver Mothers and Children; 93.929, Center for Biology, Laboratory of Physiologic Studies. days prior to the meeting due to the timing limitations imposed by the review and Medical Rehabilitation Research, National Place: Parklawn Building, The Potomac Institutes of Health, HHS) Conference Room, 5600 Fishers Lane, funding cycle. Dated: April 23, 2002. Rockville, MD 20857. Catalogue of Federal Domestic Assistance Contact Person: Brenda L. Sandler, Chief Program Nos. 93.271, Alcohol Research LaVerne Y. Stringfield, Administrative Management Branch, Div of Career Development Awards for Scientists Director, Office of Federal Advisory Intramural Clinical and Biological Research, and Clinicians; 93.272, Alcohol National Committee Policy. Building, 31, Room 1B58, Bethesda, MD Research Service Awards for Research [FR Doc. 02–10673 Filed 4–30–02; 8:45 am] 20892–2088, 301–496–9843, Training; 93.273, Alcohol Research Programs; BILLING CODE 4140–01–M [email protected]. 93.891, Alcohol Research Center Grants, (Catalogue of Federal Domestic Assistance National Institutes of Health, HHS) Program Nos. 93.271, Alcohol Research Dated: April 23, 2002. DEPARTMENT OF HEALTH AND Career Development Awards for Scientists LaVerne Y. Stringfield, HUMAN SERVICES and Clinicians; 93.272, Alcohol National Director, Office of Federal Advisory Research Service Awards for Research National Institutes of Health Training; 93.273, Alcohol Research Programs; Committee Policy. 93.891, Alcohol Research Center Grants, [FR Doc. 02–10671 Filed 4–30–02; 8:45 am] National Institutes of General Medical National Institutes of Health, HHS) BILLING CODE 4140–01–M Sciences; Notice of Closed Meeting Dated: April 23, 2002. LaVerne Y. Stringfield, Pursuant to section 10(d) of the Director, Office of Federal Advisory DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Committee Policy. HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice [FR Doc. 02–10670 Filed 4–30–02; 8:45 am] is hereby given of the following National Institutes of Health BILLING CODE 4140–01–M meeting. The meeting will be closed to the National Institute of Child Health and public in accordance with the Human Development; Notice of Closed provisions set forth in sections DEPARTMENT OF HEALTH AND Meeting HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Pursuant to section 10(d) of the as amended. The grant applications and National Institutes of Health Federal Advisory Committee Act, as the discussions could disclose amended (5 U.S.C. Appendix 2), notice confidential trade secrets or commercial National Institute on Alcohol Abuse is hereby given of the following property such as patentable material, and Alcoholism; Notice of Closed meeting. and personal information concerning Meeting The meeting will be closed to the individuals associated with the grant Pursuant to section 10(d) of the public in accordance with the applications, the disclosure of which Federal Advisory Committee Act, as provisions set forth in sections would constitute a clearly unwarranted amended (5 U.S.C. Appendix 2), notice 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. is hereby given of the following as amended. The grant applications and Name of Committee: National Institutes of meeting. the discussions could disclose General Medical Sciences Special Emphasis The meeting will be closed to the confidential trade secrets or commercial Panel, ZGM–MBRS–1–02. public in accordance with the property such as patentable material, Date: May 6, 2002. provisions set forth in sections and personal information concerning Time: 2 p.m. to 3:30 p.m. Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., individuals associated with the grant applications. as amended. The grant applications and applications, the disclosure of which Place: Natcher Building, 45 Center Drive, the discussions could disclose would constitute a clearly unwarranted Room 1AS–13, Bethesda, MD 20892, confidential trade secrets or commercial invasion of personal privacy. (Telephone Conference Call).
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Contact Person: Helen R. Sunshine, PhD, 9 (50) Electronic Review Administration Room 815, Rockville, Maryland 20857; Chief, Office of Scientific Review, NIGMS, RFA. Tel.: (301) 443–6014, Fax: (301) 443– Natcher Building, Room 1AS–13, Bethesda, Date: May 31, 2002. 3031. MD 20892, (301) 594–2881. Time: 8 a.m. to 5 p.m. This notice is being published less than 15 Agenda: To review and evaluate grant SUPPLEMENTARY INFORMATION: days prior to the meeting due to the timing applications. Mandatory Guidelines for Federal limitations imposed by the review and Place: Holiday Inn, 8120 Wisconsin Workplace Drug Testing were developed funding cycle. Avenue, Bethesda, MD 20814. in accordance with Executive Order Contact Person: Bill Bunnag, PhD, (Catalogue of Federal Domestic Assistance 12564 and section 503 of Public Law Scientific Review Administrator, Center for 100–71. Subpart C of the Guidelines, Program Nos. 93.375, Minority Biomedical Scientific Review, National Institutes of Research Support, 93.821, Cell Biology and Health, 6701 Rockledge Drive, Room 5124, ‘‘Certification of Laboratories Engaged Biophysics Research; 93.859, Pharmacology, MSC 7854, Bethesda, MD 20892–7854, (301) in Urine Drug Testing for Federal Physiology, and Biological Chemistry 435–1177, [email protected]. Agencies,’’ sets strict standards which Research,; 93.862, Genetics and laboratories must meet in order to Developmental Biology Research; 93.88, (Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine, conduct urine drug testing for Federal Minority Access to Research Careers; 93.96, agencies. To become certified an Special Minority Initiatives, National 93.306; 93.333, Clinical Research, 93.333, Institutes of Health, HHS) 93.337, 93.393–93.396, 93.837–93.844, applicant laboratory must undergo three 93.846–93.878, 93.892, 93.893, National Dated: April 23, 2002. rounds of performance testing plus an Institutes of Health, HHS) on-site inspection. LaVerne Y. Stringfield, Dated: April 23, 2002. To maintain that certification a Director, Office of Federal Advisory LaVerne J. Stringfield, laboratory must participate in a Committee Policy. Director, Office of Federal Advisory quarterly performance testing program [FR Doc. 02–10674 Filed 4–30–02; 8:45 am] Committee Policy. plus periodic, on-site inspections. BILLING CODE 4140–01–M [FR Doc. 02–10672 Filed 4–30–02; 8:45 am] Laboratories which claim to be in the BILLING CODE 4140–01–M applicant stage of certification are not to be considered as meeting the minimum DEPARTMENT OF HEALTH AND requirements expressed in the HHS HUMAN SERVICES DEPARTMENT OF HEALTH AND Guidelines. A laboratory must have its National Institutes of Health HUMAN SERVICES letter of certification from SAMHSA, HHS (formerly: HHS/NIDA) which Center for Scientific Review; Notice of Substance Abuse and Mental Health attests that it has met minimum Closed meetings Services Administration standards. In accordance with subpart C of the Pursuant to section 10(d) of the Current List of Laboratories Which Guidelines, the following laboratories Federal Advisory Committee Act, as Meet Minimum Standards To Engage in meet the minimum standards set forth amended (5 U.S.C. Appendix 2), notice Urine Drug Testing for Federal in the Guidelines: is hereby given of the following Agencies ACL Laboratories meetings. 8901 W. Lincoln Ave. The meetings will be closed to the AGENCY: Substance Abuse and Mental Health Services Administration, HHS. West Allis, WI 53227 public in accordance with the 414–328–7840/800–877–7016 provisions set forth in sections ACTION: Notice. (Formerly: Bayshore Clinical Laboratory) 552b(c)(4) and 552b(c)(6), Title U.S.C., SUMMARY: The Department of Health and ACM Medical Laboratory, Inc. as amended. The grant applications and Human Services notifies Federal 160 Elmgrove Park the discussions could disclose agencies of the laboratories currently Rochester, NY 14624 716–429–2264 confidential trade secrets or commercial certified to meet standards of Subpart C property such as patentable material, of Mandatory Guidelines for Federal Advanced Toxicology Network and personal information concerning 3560 Air Center Cove, Suite 101 Workplace Drug Testing Programs (59 Memphis, TN 38118 individuals associated with the grant FR 29916, 29925). A notice listing all applications, the disclosure of which 901–794–5770/888–290–1150 currently certified laboratories is Aegis Analytical Laboratories, Inc. would constitute a clearly unwarranted published in the Federal Register invasion of personal privacy. 345 Hill Ave. during the first week of each month. If Nashville, TN 37210 Name of Committee: Center for Scientific any laboratory’s certification is 615–255–2400 Review Special Emphasis Panel. suspended or revoked, the laboratory Alliance Laboratory Services Date: May 6, 2002. will be omitted from subsequent lists 3200 Burnet Ave. Time: 12 p.m. to 2 p.m. until such time as it is restored to full Cincinnati, OH 45229 Agenda: To review and evaluate grant 513–585–9000 applications. certification under the Guidelines. If any laboratory has withdrawn from (Formerly: Jewish Hospital of Cincinnati, Place: NIH, Rockledge 2, Bethesda, MD Inc.) 20892, (Telephone Conference Call). the National Laboratory Certification Contact Person: Marcia Litwack, PhD, Program during the past month, it will American Medical Laboratories, Inc. Scientific Review Administrator, Center for be listed at the end, and will be omitted 14225 Newbrook Dr. Scientific Review, National Institutes of from the monthly listing thereafter. Chantilly, VA 20151 703–802–6900 Health, 6701 Rockledge Drive, Room 4150, This notice is also available on the MSC 7804, Bethesda, MD 20892, (301) 435– internet at the following Web sites: Associated Pathologists Laboratories, Inc. 4230 South Burnham Ave., Suite 250 1719. http://workplace.samhsa.gov and http:// This notice is being published less than 15 Las Vegas, NV 89119–5412 days prior to the meeting due to the timing www.drugfreeworkplace.gov. 702–733–7866/800–433–2750 limitations imposed by the review and FOR FURTHER INFORMATION CONTACT: Mrs. Baptist Medical Center—Toxicology funding cycle. Giselle Hersh or Dr. Walter Vogl, Laboratory Name of Committee: Center for Scientific Division of Workplace Programs, 5600 9601 I–630, Exit 7 Review Special Emphasis Panel, ZRG1 SSS– Fishers Lane, Rockwall 2 Building, Little Rock, AR 72205–7299
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501–202–2783 504–361–8989/800–433–3823 Bakersfield, CA 93304 (Formerly: Forensic Toxicology Laboratory (Formerly: Laboratory Specialists, Inc.) 661–322–4250/800–350–3515 Baptist Medical Center) LabOne, Inc. Northwest Drug Testing, a division of NWT Clinical Laboratory Partners, LLC 10101 Renner Blvd. Inc. 129 East Cedar St. Lenexa, KS 66219 1141 E. 3900 South Newington, CT 06111 913–888–3927/800–728–4064 Salt Lake City, UT 84124 860–696–8115 (Formerly: Center for Laboratory Services, a 801–293–2300 / 800–322–3361 (Formerly: Hartford Hospital Toxicology Division of LabOne, Inc.) (Formerly: NWT Drug Testing, NorthWest Laboratory) Laboratory Corporation of America Holdings Toxicology, Inc.) Clinical Reference Lab 7207 N. Gessner Road One Source Toxicology Laboratory, Inc. 8433 Quivira Rd. Houston, TX 77040 1705 Center Street Lenexa, KS 66215–2802 713–856–8288/800–800–2387 Deer Park, TX 77536 800–445–6917 Laboratory Corporation of America Holdings 713–920–2559 Cox Health Systems, Department of 69 First Ave. (Formerly: University of Texas Medical Toxicology Raritan, NJ 08869 Branch, Clinical Chemistry Division; 1423 North Jefferson Ave. 908–526–2400/800–437–4986 UTMB Springfield, MO 65802 (Formerly: Roche Biomedical Laboratories, Pathology-Toxicology Laboratory) 800–876–3652/417–269–3093 Inc.) Oregon Medical Laboratories (Formerly: Cox Medical Centers) Laboratory Corporation of America Holdings P.O. Box 972, 722 East 11th Ave. Diagnostic Services Inc., dba DSI 1904 Alexander Drive Eugene, OR 97440–0972 12700 Westlinks Drive Research Triangle Park, NC 27709 541–687–2134 Fort Myers, FL 33913 919–572–6900/800–833–3984 Pacific Toxicology Laboratories 941–561–8200/800–735–5416 (Formerly: LabCorp Occupational Testing 6160 Variel Ave. Doctors Laboratory, Inc. Services, Inc., CompuChem Laboratories, Woodland Hills, CA 91367 P.O. Box 2658, 2906 Julia Dr. Inc.; 818–598–3110/800–328–6942 Valdosta, GA 31602 CompuChem Laboratories, Inc., A Subsidiary (Formerly: Centinela Hospital Airport 912–244–4468 of Roche Biomedical Laboratory; Roche Toxicology Laboratory DrugProof, Divison of Dynacare CompuChem Pathology Associates Medical Laboratories 543 South Hull St. Laboratories, Inc., A Member of the Roche 110 West Cliff Drive Montgomery, AL 36103 Group) Spokane, WA 99204 888–777–9497/334–241–0522 Laboratory Corporation of America Holdings 509–755–8991/800–541–7891x8991 (Formerly: Alabama Reference Laboratories, 10788 Roselle Street PharmChem Laboratories, Inc. Inc.) San Diego, CA 92121 4600 N. Beach DrugProof, Division of Dynacare/Laboratory 800–882–7272 Haltom City, TX 76137 of Pathology, LLC (Formerly: Poisonlab, Inc.) 817–605–5300 1229 Madison St., Suite 500, Nordstrom Laboratory Corporation of America Holdings (Formerly: PharmChem Laboratories, Inc., Medical Tower 1120 Stateline Road West Texas Division; Harris Medical Seattle, WA 98104 Southaven, MS 38671 Laboratory) 206–386–2672/800–898–0180 866–827–8042/800–233–6339 Physicians Reference Laboratory (Formerly: Laboratory of Pathology of Seattle, (Formerly: LabCorp Occupational Testing 7800 West 110th St. Inc., DrugProof, Division of Laboratory of Services, Inc., MedExpress/National Overland Park, KS 66210 Pathology of Seattle, Inc.) Laboratory Center) 913–339–0372/800–821–3627 DrugScan, Inc. Marshfield Laboratories Quest Diagnostics Incorporated P.O. Box 2969, 1119 Mearns Rd. Forensic Toxicology Laboratory 3175 Presidential Dr. Warminster, PA 18974 1000 North Oak Ave. Atlanta, GA 30340 215–674–9310 Marshfield, WI 54449 770–452–1590 (Formerly: SmithKline Beecham Clinical Dynacare Kasper Medical Laboratories* 715–389–3734/800–331–3734 Laboratories, SmithKline Bio-Science 14940–123 Ave. MAXXAM Analytics Inc.* Laboratories) Edmonton, Alberta 5540 McAdam Rd. Canada T5V 1B4 Mississauga, ON Quest Diagnostics Incorporated 780–451–3702/800–661–9876 Canada L4Z 1P1 4770 Regent Blvd. Irving, TX 75063 ElSohly Laboratories, Inc. 905–890–2555 (Formerly: NOVAMANN (Ontario) Inc.) 800–842–6152 5 Industrial Park Dr. (Moved from the Dallas location on 03/31/01; Oxford, MS 38655 Medical College Hospitals Toxicology Formerly: SmithKline Beecham Clinical 662–236–2609 Laboratory, Department of Pathology Laboratories, SmithKline Bio-Science Express Analytical Labs 3000 Arlington Ave. Laboratories) 3405 7th Avenue, Suite 106 Toledo, OH 43699 419–383–5213 Quest Diagnostics Incorporated Marion, IA 52302 400 Egypt Rd. 319–377–0500 MedTox Laboratories, Inc. Norristown, PA 19403 Gamma-Dynacare Medical Laboratories* 402 W. County Rd. D 610–631–4600/877–642–2216 A Division of the Gamma-Dynacare St. Paul, MN 55112 (Formerly: SmithKline Beecham Clinical Laboratory Partnership 651–636–7466/800–832–3244 Laboratories, SmithKline Bio-Science 245 Pall Mall St. MetroLab-Legacy Laboratory Services Laboratories) London, ONT 1225 NE 2nd Ave. Quest Diagnostics Incorporated Canada N6A 1P4 Portland, OR 97232 506 E. State Pkwy. 519–679–1630 503–413–5295/800–950–5295 Schaumburg, IL 60173 General Medical Laboratories Minneapolis Veterans Affairs Medical Center 800–669–6995/847–885–2010 36 South Brooks St. Forensic Toxicology Laboratory (Formerly: SmithKline Beecham Clinical Madison, WI 53715 1 Veterans Drive Laboratories, International Toxicology 608–267–6267 Minneapolis, Minnesota 55417 Laboratories) Kroll Laboratory Specialists, Inc. 612–725–2088 Quest Diagnostics Incorporated 1111 Newton St. National Toxicology Laboratories, Inc. 7600 Tyrone Ave. Gretna, LA 70053 1100 California Ave. Van Nuys, CA 91405
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818–989–2520/800–877–2520 DHHS’ National Laboratory Certification DEPARTMENT OF THE INTERIOR (Formerly: SmithKline Beecham Clinical Program (NLCP) contractor continuing to Laboratories) have an active role in the performance testing Fish and Wildlife Service Scientific Testing Laboratories, Inc. and laboratory inspection processes. Other 463 Southlake Blvd. Canadian laboratories wishing to be Notice of Availability Richmond, VA 23236 considered for the NLCP may apply directly 804–378–9130 to the NLCP contractor just as U.S. SUMMARY: The U.S. Fish and Wildlife S.E.D. Medical Laboratories laboratories do. Service announces that a Draft 5601 Office Blvd. Upon finding a Canadian laboratory to be Comprehensive Conservation Plan and Albuquerque, NM 87109 qualified, the DHHS will recommend that Environmental Assessment (CCP/EA) 505–727–6300/800–999–5227 DOT certify the laboratory (FR, 16 July 1996) for Crescent Lake National Wildlife as meeting the minimum standards of the Refuge (Refuge) is available for review South Bend Medical Foundation, Inc. ‘‘Mandatory Guidelines for Workplace Drug 530 N. Lafayette Blvd. Testing’’ (59 FR, 9 June 1994, Pages 29908– and comment. This CCP/EA, prepared South Bend, IN 46601 29931). After receiving the DOT certification, pursuant to the National Wildlife Refuge 219–234–4176 the laboratory will be included in the System Improvement Act of 1997 and Southwest Laboratories monthly list of DHHS certified laboratories the National Environmental Policy Act 2727 W. Baseline Rd. and participate in the NLCP certification of 1969, describes how the U.S. Fish Tempe, AZ 85283 maintenance program. and Wildlife Service intends to manage 602–438–8507/800–279–0027 Richard Kopanda, the Refuge for the next 15 years. Sparrow Health System DATES: Please submit comments on the Toxicology Testing Center, St. Lawrence Executive Officer, Substance Abuse and Campus Mental Health Services Administration. Draft CCP/EA on or before May 31, 1210 W. Saginaw [FR Doc. 02–10684 Filed 4–30–02; 8:45 am] 2002. Lansing, MI 48915 BILLING CODE 4160–20–P ADDRESSES: Comments on the Draft 517–377–0520 CCP/EA should be addressed to: Steve (Formerly: St. Lawrence Hospital & Knode, Project Leader, U.S. Fish and Healthcare System) DEPARTMENT OF HEALTH AND Wildlife Service, Crescent Lake National St. Anthony Hospital Toxicology Laboratory HUMAN SERVICES Wildlife Refuge Complex, 115 Railway 1000 N. Lee St. Street, Suite C109, Scottsbluff, NE Oklahoma City, OK 73101 Substance Abuse and Mental Health 69361–3190. 405–272–7052 Services Administration Toxicology & Drug Monitoring Laboratory FOR MORE INFORMATION CONTACT: Steve Knode, Project Leader, U.S. Fish and University of Missouri Hospital & Clinics Correction of Application Deadline for Wildlife Service, Crescent Lake National 2703 Clark Lane, Suite B, Lower Level the Grant Program, Targeted Capacity Columbia, MO 65202 Wildlife Refuge Complex,115 Railway Expansion: Meeting the Mental Health 573–882–1273 Street, Suite C109, Scottsbluff, NE Services Needs of Older Adults (SM Toxicology Testing Service, Inc. 69361 (308) 635–7851; fax (308) 635– 02–009) 5426 N.W. 79th Ave. 7841; or John Esperance, Branch Chief, Miami, FL 33166 AGENCY: Substance Abuse and Mental Branch of Land Protection Planning, PO 305–593–2260 Health Services Administration Box 25486–DFC, Denver, CO 80225; Universal Toxicology Laboratories (Florida), (SAMHSA), DHHS. (303) 236–8145 ext. 658. LLC SUPPLEMENTARY INFORMATION: 5361 NW 33rd Avenue ACTION: Correction of Application Fort Lauderdale, FL 33309 Deadline for the grant program, Availability of Documents 954–717–0300, 800–419–7187x419 Targeted Capacity Expansion: Meeting (Formerly: Integrated Regional Laboratories, the Mental Health Services Needs of Copies of the Draft CCP/EA may be Cedars Medical Center, Department of Older Adults (SM 02–009). obtained by writing to Steve Knode, Pathology) Project Leader, U.S. Fish and Wildlife Universal Toxicology Laboratories, LLC SUMMARY: This notice is to inform the Service, Crescent Lake National Wildlife 9930 W. Highway 80 public that the application deadline Refuge Complex, 115 Railway Street, Midland, TX 79706 published on April 23, 2002, for the Suite C109, Scottsbluff, NE 69361. 915–561–8851/888–953–8851 grant program, Targeted Capacity Copies of the plan may also be viewed US Army Forensic Toxicology Drug Testing Expansion: Meeting the Mental Health at this address. Laboratory Services Needs of Older Adults (SM 02– Fort Meade, Building 2490 009), is incorrect. The correct Background Wilson Street application deadline is June 19, 2002. The 45,849-acre Crescent Lake Fort George G. Meade, MD 20755–5235 National Wildlife Refuge (Refuge), 301–677–7085 PROGRAM CONTACT: For questions about ______the due date for this program or other established in 1931, is located 28 miles * The Standards Council of Canada (SCC) program issues relating to this program, north of Oshkosh, Nebraska in Garden voted to end its Laboratory Accreditation contact: Betsy McDonel Herr, Ph.D., County, within the Central Flyway, at Program for Substance Abuse (LAPSA) Social Science Analyst, Center for the southwestern end of the Nebraska effective May 12, 1998. Laboratories certified Mental Health Services, SAMHSA, Sandhills. It is administered by the U.S. through that program were accredited to Room 11C–22, 5600 Fishers Lane, Fish and Wildlife Service as part of the conduct forensic urine drug testing as Rockville, MD 20857, (301) 594–2197, Crescent Lake/North Platte National required by U.S. Department of (301) 443–0541 (FAX) E-mail: Wildlife Refuge Complex. The Complex Transportation (DOT) regulations. As of that headquarters is 100 miles to the west in date, the certification of those accredited [email protected]. Canadian laboratories will continue under the city of Scottsbluff, NE. Dated: April 25, 2002. Crescent Lake Refuge lies on the DOT authority. The responsibility for Richard Kopanda, conducting quarterly performance testing southwestern edge of the 19,300 square- Executive Officer, SAMHSA. plus periodic on-site inspections of those mile Nebraska Sandhills, the largest LAPSA-accredited laboratories was [FR Doc. 02–10709 Filed 4–30–02; 8:45 am] sand dune area in the Western transferred to the U.S. DHHS, with the BILLING CODE 4162–20–M Hemisphere and one of the largest grass-
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stabilized regions in the world. The interpretation. With the reintroduction increase prescribed fire in this area and Sandhills are characterized by rolling, of the bison herd, the Refuge staff would incrementally remove interior fences. A vegetated hills and inter-dunal valleys increase monitoring of fire effects and five-year monitoring program would be which are oriented in a northwest to wildlife trends. Over time, use of established in this area to document southeast direction. Many shallow lakes permittee cattle on the Refuge would be changes in grasslands and wildlife. and marshes are interspersed in the phased out. The Refuge staff would After the five-year period, the Refuge lower valleys. Native grasses increase the use of prescribed fire to staff would determine if bison grazing is predominate. Wildlife diversity, except replicate historic fire frequency. Over a truly compatible with a healthy large ungulates and their predators, is period of time, water control structures grassland ecosystem. If not, they would relatively unchanged since early would be removed and lakes would return to permittee cattle as the primary settlement. return to natural levels. The Refuge staff grassland management tool. The initial Refuge was 36,920 acres, would monitor and study threatened Under this alternative, the Refuge acquired primarily from one large ranch. and endangered species to determine would retain the lakes presently open to Additional lands were acquired between effects of historic management. The fishing. 1932 and 1937. Most lands were control of exotic plants would be done This alternative includes the acquired or exchanged under the using increased prescribed fire along following management strategies that authority of the Migratory Bird with beneficial insects and herbicides. would monitor threatened and Conservation Act (45 Stat. 1222). The same number of lakes would endangered species use and conduct Approximately 2,566 acres were remain open to fishing. The Refuge staff applied research to determine methods acquired under the Resettlement would continue current cooperative to increase use: Administration (Executive Order 7027, agreements and seek partnerships in • The Refuge would continue to April 30, 1935), a drought and bison management. The current hunting transplant blowout penstemon in depression relief program. programs would be continued. additional sites and protect trees for The Nebraska Sandhills are one of the Under Alternative 3 the Refuge staff bald eagle roosts. few large native prairie areas in the would actively manage grasslands using • Control weeds and exotic plants United States that have not been grazing with permittee cattle, rest, and using a combination of prescribed fire, substantially converted to farmland or prescribed fire. Water level management beneficial insects, and herbicides. otherwise modified. Thus, most of the would be more intensively • Continue current fishing plant and animal species present when implemented. Existing water control opportunities with an increased settlement began are still present today. structures would remain as necessary emphasis on public environmental This Draft CCP/EA identifies and for draw-downs. The Refuge staff would education and interpretation. evaluates four alternatives for managing increase monitoring, management, and • Continue current hunting Crescent Lake National Wildlife Refuge research on threatened and endangered opportunities and add limited in Garden County, Nebraska for the next species. Control of weeds and exotic waterfowl hunting. 15 years. plants would be accomplished by use of • Current cooperative agreements and Under the No Action Alternative, the grazing, beneficial insects, herbicides refuge managers would continue current partnerships would continue, and the and increased prescribed fire. Current Refuge staff would seek outside funding management and would not involve hunting programs would continue with extensive restoration of wetlands and to implement parts of the Plan. limits on numbers of hunters instituted • The Refuge staff would actively grassland habitat, nor improvements to if crowding occurs. This alternative seek a partnering effort in bison roads, interpretive, and administrative calls for the increase in number of management. facilities. Refuge lakes open to sport fishing and • Refuge staff would increase This alternative would result in an increase in the fishery management monitoring of grasslands and wildlife managing grasslands through grazing, of those open lakes. This alternative also with emphasis on evaluation of the use using permittee cattle, rest, and limited calls for an increase in the levels of of bison and fire to manage grasslands. prescribed fire. The Refuge staff would interpretation and environmental conduct limited surveys and education. Continue current cooperative Dated: March 13, 2002. management for threatened and agreements and partnerships and seek John A. Blankenship, endangered species, use grazing, fire, additional ones. The Refuge would Deputy Regional Director, Region 6, Denver, beneficial insects, and herbicides to increase monitoring of wildlife and Colorado. control exotic plants and weeds; habitats. [FR Doc. 02–10685 Filed 4–30–02; 8:45 am] maintain the current levels of hunting, Alternative 4 is the Service’s preferred BILLING CODE 4310–55–P fishing, and wildlife observation; stay alternative that would enable Crescent with the current cooperative agreements Lake NWR staff to manage their and partnerships; and continue the resources for native birds and wild DEPARTMENT OF THE INTERIOR current levels of wildlife and habitat animals, and to pursue the desire to monitoring. implement a more natural/historic Bureau of Land Management Under Alternative 2, the refuge management regime with bison and [WO–310–1310–02–PB–24 1A] managers would provide for the prescribed fire as historical habitat reintroduction of a bison herd that management tools. OMB Approval Number 1004–0185; would range freely on Crescent Lake Under this alternative the Refuge staff Information Collection Submitted to NWR. The bison would be reintroduced would, through a special use permit, the Office of Management and Budget to the Refuge though a special use reintroduce a bison herd on the 24,502- for Review Under the Paperwork permit by allowing a permittee to acre proposed Wilderness Area of the Reduction Act seasonally graze on Refuge land, Refuge. The bison will be allowed to following the guidelines of a grazing seasonally graze on Refuge land. The The Bureau of Land Management step-down plan. The public would have permittee would be required to follow (BLM) has submitted the proposed visible access to the bison herd, which the guidelines of a Bison Management collection of information listed below to would provide historical ecology step-down plan. The Refuge would the Office Management and Budget
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(OMB) for approval under the Estimated Completion Time: For ease statement (EIS) by a third-party provisions of the Paperwork Reduction of reference, this table summarizes the contractor on the impacts of this (44 U.S.C. Chapter 3501 et seq.). On burden items in this information proposed project. Interested members of August 21, 2001, the BLM published a collection request: the public are encouraged to identify notice in the Federal Register (66 FR significant issues or concerns related to 43899) requesting comments on the Number of anal- the proposed action to determine the collection. The comment period ended yses and report- scope of the issues (including Type of analysis ing per respond- Hours October 22, 2001. No comments were ent alternatives) that need to be analyzed received. You may obtain copies of the and to eliminate from detailed study proposed collection of information and Preliminary ...... 1,000@ 2 hours 2,000 those issues that are not significant. One related explanatory material by Detailed ...... 100@ 24 hours .. 2,400 public scoping meeting will be held. contacting the BLM Information Additional ...... 10@ 20 hours .... 200 The location and time of the meeting Clearance Officer at the telephone will be announced in local newspapers Total ...... 1,110 ...... 4,600 number listed below. or may be obtained by contacting Nicole Riven at 760–337–4426 or e-mail OMB is required to respond to this Annual Responses: 1,110. request within 60 days but may respond [email protected]. Comments Annual Burden Hours: 4,600. recommending that the EIS address after 30 days. For maximum Bureau Clearance Officer: Michael H. specific environmental issues should consideration, your comments and Schwartz (202) 452–5033. suggestions on the requirement should include supporting documentation. be made within 30 days directly to the Dated: April 5, 2002. Written comments must be received at Office of Management and Budget, Michael H. Schwartz, the El Centro Field Office no later than Interior Department Desk Officer (1004– Bureau of Land Management, Information June 10, 2002. Comments, including 0185), Office of Information and Collection Clearance Officer. names and street addresses of Regulatory Affairs, Washington, D.C. [FR Doc. 02–10689 Filed 4–30–02; 8:45 am] respondents, will be available for public 20503. Please provide a copy of your BILLING CODE 4310–84–M review at the El Centro Field Office comments to the Bureau Information during regular business hours and may Collection Clearance Officer (WO–630) be published as part of the EIS. 1849 C St., NW., Mail Stop 401 LS, DEPARTMENT OF THE INTERIOR Individual respondents may request Washington, DC. 20240. confidentiality. If you wish to withhold Bureau of Land Management Nature of Comments: We specifically your name or street address from public request your comments on the [CACA–44014] review or from disclosure under the following: Freedom of Information Act, you must 1. Whether the collection of Notice of Intent To Prepare an state this prominently at the beginning information is necessary for the proper Environmental Impact Statement (EIS) of your written comment. Such requests functioning of the Bureau of Land on the Proposed Expansion/ will be honored to the extent allowed by Management, including whether the Modernization of an Existing law. All submissions from organizations information will have practical utility; Wallboard Manufacturing Facility and and businesses, and from individuals 2. The accuracy of our estimates of the Associated Quarry Operation identifying themselves as representatives or officials of information collection burden, AGENCY: Bureau of Land Management, organizations or businesses, will be including the validity of the Interior. methodology and assumptions we use; available for public inspection in their ACTION: Notice of intent. 3. Ways to enhance the quality, entirety. utility, and clarity of the information SUMMARY: United States Gypsum (USG) ADDRESSES: Written comments should collected; and has proposed the expansion and be addressed to Greg Thomsen, Field 4. How to minimize the information modernization of USG’s Plaster City Manager, Bureau of Land Management, collection burden on those who are to wallboard manufacturing operations El Centro Field Office, 1661 South 4th respond, including the use of and Fish Creek Quarry operations Street, El Centro, CA 92243. appropriate automated, electronic, located in Imperial County, California. FOR FURTHER INFORMATION CONTACT: mechanical, or other technological Although USG’s facilities are primarily Linda Self (760) 337–4426. collection techniques or other forms of on private land, several appurtenances SUPPLEMENTARY INFORMATION: USG’s information technology. cross public land. Using the U.S. Plaster City wallboard plant has been in Title: Onshore Oil and Gas Drainage government survey method, the areas operation for over 55 years and is Protection, 43 CFR 3100 and 3162. within which the existing and proposed located adjacent to Evan Hewes OMB Approval Number: 1004–0185. facilities are located are generally Highway in Plaster City approximately Abstract: Federal and Indian (except described as follows: SBBM, T.16S., 18 miles west of El Centro and 2 miles Osage) oil and gas lessees and operating R.11E. (Plaster City wallboard plant and north of Interstate 8. The Fish Creek rights owners must monitor drilling portion of Interstate rail line; T.13S., Quarry operations are located on Split activities of offending wells that may R.9E. (Fish Creek quarry); T.13S., R.9E.; Mountain Road approximately 26 miles result in drainage situations of Federal T.13S., R.10E.; T.14S., R.10E.; T.15E., north by northwest of Plaster City. The oil and gas mineral resources. R.10E., T.15S., R.11E.; T.16S., R.11E. quarry operations are located within Respondents are oil and gas companies, (narrow gauge rail line between quarry designated critical habitat for the lessees, operators, operating rights and plant); T.16S., R.10E.; T.16S, R.11E. Peninsular bighorn sheep (Ovis owners, and individuals. (water pipeline between Ocotillo and canadensis). Water for the facility is Form Number: None. plant). delivered via pipeline from the Ocotillo- Frequency: On occasion; Pursuant to section 102(2)(c) of the Coyote Wells Groundwater Basin. nonrecurring. National Environmental Policy Act of Generally, the overall expansion/ Description of Respondets: Jessees 1969, the BLM will direct the modernization project consists of and operating rights owners. preparation of an environmental impact construction of new buildings, a
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doubling in wallboard production by direct sale to the Chugiak Benefit SUMMARY: The following public lands in removing one operating production Association (CBA), under the authority the community of Littlefield in Mohave wallboard line, and installing a new of section 203 of the Federal Land County, Arizona have been examined state-of-the-art high speed line and Policy and Management Act of October and found suitable for classification for increased mining of gypsum from 1.1 21, 1976 (43 U.S.C. 1713), at no less lease or conveyance to the Littlefield million tons per year (mty) to than the appraised fair market value of School District under the provisions of approximately 1.9 mty on land reserves $31,649.25. The land is described as T. the Recreation and Public Purposes Act, owned and mined by USG. The project 15N., R. 1 W., Sec. 9, Lots 16 and 17, as amended (43 U.S.C. 869 et seq.). The also includes expanding existing and and 20 Seward Meridian, Alaska, Littlefield School District proposes to planned quarry areas. The accumulated located southwest of the North use the land for schools. inert materials associated with the Birchwood Interchange, containing 3 Gila and Salt River Meridian expanded manufacturing activities at acres, more or less. The land is currently the Plaster City site will be recycled or owned by CBA, but is restricted by a T. 40 N., R. 16 W., Sec. 13, SE1⁄4. transferred to a landfill. To reversionary clause in the patent. The T. 41 N., R. 15 W., accommodate the expanded operations, land is an isolated parcel, difficult and Sec. 33, portions of Lots 1, 4 and 5. water usage will increase from 400 acre- uneconomic to manage as part of the Containing 139 acres, more or less. feet per year (AF/Yr) to a maximum of public lands, and not needed for federal 767 AF/Yr. The project will include purposes. The sale is consistent with The lands are not needed for Federal modernizing the existing warehouses, BLM’s land use planning for the area purposes. Lease or conveyance is storage structures, and rail loading involved and the public interest will be consistent with current BLM land use facility; upgrading electrical served by the sale. planning and would be in the public transmission lines (by Imperial FOR FURTHER INFORMATION CONTACT: interest. The lease/patent, when issued, Irrigation District); maintaining the Callie Webber, Anchorage Field Office, will be subject to the following terms, narrow gauge rail line which runs 6881 Abbott Loop Road, Anchorage, conditions and reservations: between the plant and the quarry; Alaska 99507, (907) 267–1272. 1. Provisions of the Recreation and replacing the existing pipeline that runs SUPPLEMENTARY INFORMATION: This Public Purposes Act and to all between Ocotillo and the plant and action will accommodate and provide applicable regulations of the Secretary relocating a short portion of the for the expansion of an existing senior of the Interior. Interstate rail line that runs through the housing and community development 2. A right-of-way for ditches and Plaster City facility. Some of these project, located on adjacent land. facilities may be located within habitat canals constructed by the authority of Funding is made available through a the United States. for the Flat-tailed horned lizard U.S. Department of Housing and Urban 3. All minerals shall be reserved to (Phrynosoma mcalli). Although certain Development grant. The patent, when the United States, together with the aspects of the project have already been issued, will be for reversionary interest right to prospect for, mine, and remove implemented pursuant to Imperial only. All other terms and conditions of the minerals. County’s previous decision to adopt a Patent No. 1230095 will continue to Negative Declaration for portions of the apply to the lands involved. For a 4. Those rights for Old Highway 91, project, for purposes of this EIS, the ‘‘ period of 45 days from the date of 200 feet wide granted by right-of-way baseline’’ for evaluating the potential publication of this notice in the Federal AZA–021195. impacts of the project on the Register, interested parties may submit 5. Those rights for a 30 foot wide environment shall be the physical comments regarding the proposed direct telephone line granted by right-of-way conditions that existed prior to project sale of the reversionary interest to the AZAR–035969. implementation. Anchorage Field Office Manager. 6. Any other valid and existing rights Dated: April 25, 2002. Adverse comments will be evaluated, of record not yet identified. Greg Thomsen, and could result in the modification or Detailed information concerning this Field Manager. vacation of this decision. The reversionary interest will not be offered action is available for review at the [FR Doc. 02–10687 Filed 4–30–02; 8:45 am] office of the Bureau of Land BILLING CODE 4310–40–P for conveyance until at least 60 days after the date of this notice. Management, Arizona Strip Field Office, 345 E. Riverside Dr., St. George, Utah Dated: March 29, 2002. 84790. DEPARTMENT OF THE INTERIOR June Bailey, Upon publication of this notice in the Bureau of Land Management Acting Anchorage Field Office Manager. Federal Register, the lands will be [FR Doc. 02–10703 Filed 4–30–02; 8:45 am] segregated from all other forms of [AK–040–1430–EU; AA–083994, A–029786] BILLING CODE 4310–JA–P appropriation under the public land Notice of Realty Action: Direct Sale, laws including the general mining laws, Alaska except for lease or conveyance under DEPARTMENT OF THE INTERIOR the Recreation and Public Purposes Act AGENCY: Bureau of Land Management, Bureau of Land Management and leasing under the mineral leasing Interior. laws. For a period of 45 days from the [AZ–010–02–1430–ES; A–31350] ACTION: Notice of Realty Action: Direct date of publication of this notice in the Sale of Reversionary Interest of Federal Register, interested persons Notice of Realty Action; Recreation may submit comments regarding the Recreation & Public Purpose Patent, and Public Purposes (R&PP) Act Number 1230095; Chugiak, Alaska. proposed lease or conveyance or Classification; Arizona classification of the lands to the Field SUMMARY: Reversionary interest held by AGENCY: Bureau of Land Management. Office Manager, Arizona Strip Field the United States in the following lands Office, 345 E. Riverside Dr., St. George, ACTION: Notice. has been determined to be suitable for UT 84790.
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Classification Comments Parcel 2. All public land within the refundable filing fee is also required to boundaries of the SW1⁄4, and the apply for the mineral estate. In addition Interested parties may submit 1 1 comments involving the suitability of S ⁄2SE ⁄2 of Section 8, T. 15 S., R. 69 W., to the appraised value minimum bid the land for schools. Comments on the 6th P.M. containing 38 tracts totaling and any bid addition, successful bidders classification are restricted to whether approximately 6.14 acres. A $50 non- shall reimburse the BLM for certain processing costs. the land is physically suited for the refundable filing fee is also required to apply for the mineral estate. Other terms and conditions of the sale proposal, whether the use will Parcel 3. All public land within the are: maximize the future use or uses of the boundaries of the S1⁄2SE1⁄4 of Section 1. Patent will be subject to a 60-foot land, whether the use is consistent with 13, and the N1⁄2N1⁄2NE1⁄4, and the wide right-of-way for all existing State local planning and zoning, or if the use N1⁄2S1⁄2N1⁄2NE1⁄4 of Section 24, T. 15 S., and county roads, if any, as of the date is consistent with State and Federal R. 70 W., 6th P.M. containing 12 tracts of patent. programs. totaling approximately 1.51 acre. A $50 2. A right-of-way will be reserved for Application Comments non-refundable filing fee is also ditches and canals constructed by the required to apply for the mineral estate. authority of the United States under the Interested parties may submit Parcel 4. All public land within the Act of August 30, 1890 (26 Stat. 291; 43 comments regarding the specific use boundaries of Section 21, and the U.S.C. 945). proposed in the application and plan of NW1⁄4NW1⁄4 of Section 28, T. 15 S., R. These lands are classified for disposal development, whether the BLM 69 W., 6th P.M. containing 37 parcels pursuant to section 7 of the Taylor followed proper administrative totaling approximately 5.45 acres. A $50 Grazing Act and were identified for procedures in reaching the decision, or non-refundable filing fee is also disposal in a land use plan which was any other factor not directly related to required to apply for the mineral estate. in effect on July 25, 2000, and the the suitability of the land for a school. Parcel 5. All public land within the proceeds from this sale will be Any adverse comments will be reviewed boundaries of the S1⁄2S1⁄2N1⁄2NE1⁄4, deposited in the Federal Land Disposal by the State Director. In the absence of S1⁄2NE1⁄4, NE1⁄4SE1⁄4NW1⁄4, Account authorized under section 206 any adverse comments, the E1⁄2SE1⁄4SE1⁄4NW1⁄4, of the Federal Land Transaction classification will become effective 60 E1⁄2NE1⁄4NE1⁄4SW1⁄4, Facilitation Act, Public Law 106–248. days from the date of publication of this E1⁄2NE1⁄4SE1⁄4NE1⁄4SW1⁄4, and the SE1⁄4, The lands were previously segregated notice in the Federal Register. Section 24, T. 15 S., R. 70 W., 6th P.M. for exchange, which is hereby canceled Roger G. Taylor, containing 25 tracts totaling and are hereby segregated from appropriation under the public land Field Manager. approximately 6.77 acres. The United States will reserve all minerals and the laws, including the mining laws, [FR Doc. 02–10700 Filed 4–30–02; 8:45 am] surface will be patented subject to use pending disposition of this action or 270 BILLING CODE 4310–32–P reasonably incident to exploration and days from the date of publication of this mining so long as the mineral estate is notice, whichever occurs first. The parcels will be offered for DEPARTMENT OF THE INTERIOR separate from the surface estate and held by the federal government. All competitive sale, at 3170 East Main St., Bureau of Land Management bidders are advised that mining claims Canon City, Colorado not less than 60 exist, the title is defeasible, and the days from the date of this publication claimant(s) may be entitled to a patent and bidding will be by oral auction. [CO–200–1430–EU, COC–63798] for surface and minerals should all Sealed bids will be accepted until close Notice of Realty Action requirements of the mining law be met. of business the day before the auction at Parcel 6. All public land within the the address below. Envelopes should be AGENCY: Bureau of Land Management, boundaries of the E1⁄2NE1⁄4, clearly marked ‘‘SEALED BID: COC– Interior. E1⁄2NW1⁄4NE1⁄4, NW1⁄4NW1⁄4NE1⁄4, 63798 May 2, 2002 for PARCEL # as ACTION: Notice of Realty Action, N1⁄2SW1⁄4NW1⁄4NE1⁄4, SW1⁄4NE1⁄4, appropriate’’. Bid amounts must be competitive land sale in Colorado. E1⁄2NE1⁄4SE1⁄4NW1⁄4, stated in the bid and signed. All bids, E1⁄2SE1⁄4SE1⁄4NW1⁄4, E1⁄2NE1⁄4SW1⁄4, whether sealed or oral, shall be SUMMARY: The following lands have S1⁄2NW1⁄4NE1⁄4SW1⁄4, SW1⁄4NE1⁄4SW1⁄4, accompanied by a bid deposit of 30% of been found suitable for sale under E1⁄2SE1⁄4NW1⁄4SW1⁄4, the appraised minimum bid and full section 203 of the Federal Land Policy E1⁄2NE1⁄4SW1⁄4SW1⁄4, SE1⁄4SW1⁄4SW1⁄4, payment of the mineral fee if necessary and Management Act of 1976 (90 Stat. SE1⁄4SW1⁄4, SE1⁄4 of Section 25, T. 15 S., and the processing cost amount in the 2750, 43 U.S.C. 1713) at not less than R. 70 W., 6th P.M. containing 28 tracts form of separate certified check, postal the appraised fair market value. The totaling approximately 10.42 acres. The money order, bank draft, or cashiers lands will not be offered for sale until United States will reserve all minerals check made payable to ‘‘USDI, Bureau at least 60 days after the date of this and the surface will be patented subject of Land Management’’ for each of the notice. Bidders are limited to those with to use reasonably incident to appropriate three amounts. Oral bids adjacent land or legally recorded exploration and mining so long as the will be accepted in $100 increments existing rights. Evidence of such must mineral estate is separate from the only. Federal law requires that bidders be presented at the time of the auction. surface estate and held by the federal must be U.S. citizens 18 years of age or All parcels are located in Teller County, government. All bidders are advised older, or, in the case of a corporation or Colorado as described below: that mining claims exist, the title is association, subject to the laws of any Parcel 1. All public land within the defeasible, and the claimant(s) may be State of the U.S. Proof of citizenship or boundaries of the SE1⁄4NE1⁄4, and the entitled to a patent for surface and authorization to bid for a corporation or SE1⁄4 of Section 7, T. 15 S., R. 69 W., minerals should all requirements of the association shall accompany the bid. 6th P.M. containing 18 tracts totaling mining law be met. The successful high bidder shall be approximately 5.76 acres. A $50 non- Parcel 7. Lot 78 Section 6, T. 16 S., required to submit the full payment of refundable filing fee is also required to R. 69 W., 6th P.M. containing the balance of their bid no later than 90 apply for the mineral estate. approximately 8.41 acres. A $50 non- days after the auction. Failure to submit
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such payment shall result in forfeiture FOR FURTHER INFORMATION CONTACT: ACTION: Notice of realty action, sale of of the bid deposit and offering to the David Hallock, Realty Specialist BLM, public land. second highest bidder at their original 719–269–8536; Royal Gorge Field bid. If no acceptable bid is received the Office, 3170 E. Main St., Canon City, CO SUMMARY: The following described land will be offered by sealed bid on the 81212. public land in Harney County, Oregon, 1st and 3rd Wednesdays (4 p.m.) of each Paul D. Trentzsch, has been examined and found suitable month at no less than the minimum bid for sale under sections 203 and 209 of until the offer is canceled. Acting Field Manager. [FR Doc. 02–10704 Filed 4–30–02; 8:45 am] the Federal Land Policy and DATES: Interested parties may submit Management Act of 1976 (90 Stat. 2750, BILLING CODE 4310–JB–P comments on this action on or before 45 43 U.S.C. 1713 and 1719), at not less days from the date of this publication. than the appraised market value. All Please reference the applicable serial parcels being offered are identified for number in all correspondence. DEPARTMENT OF THE INTERIOR disposal in the Three Rivers Resource Objections will be reviewed and this Bureau of Land Management realty action may be sustained, vacated, Management Plan. or modified. Unless vacated or All of the land described is within the modified, this realty action will become [OR–025–02–1430–EU: G–2–0025] Willamette Meridian. final. Realty Action: Sale of Public Land in ADDRESS FOR COMMENTS: Royal Gorge Harney County, OR Field Office Manager, Bureau of Land Management, 3170 E. Main St., Canon AGENCY: Bureau of Land Management City, CO 81212. (BLM), Burns District, Interior.
Minimum Parcel number Legal description Acres acceptable Bidding proce- Designated bidders bid dures
OR–56567 ...... T.18S., R.331⁄2E., sec. 32, 120 $24,000 Modified Com- Gladys Williams, Terry and Nancy S1⁄2SW1⁄4, SW1⁄4SE1⁄4. petitive. Williams, and Van Grazing Coop- erative. ORÐ56568 ...... T.19S., R.331⁄2E., sec. 26, 40 8,000 Modified Com- Van Grazing Cooperative, Helen NW1⁄4NW1⁄4. petitive. Opie, and Jack Joyce. ORÐ56574 ...... T.22S., R.33E., sec. 28, E1⁄2 ...... 320 128,000 Competitive ...... None. ORÐ56575 ...... T.27S., R.34E., sec. 6, lots 145.56 58,000 Competitive ...... None 3(40.26), 4(32.76), 5(32.54), SE1⁄4NW1⁄4. ORÐ56576 ...... T.27S., R.34E., sec. 9, SW1⁄4SW1⁄4 40 8,000 Modified Com- Fred and Betty Briggs, and John petitive. and Karen Starbuck. ORÐ56577 ...... T.27S., R.34E., sec. 21, NE1⁄4SE1⁄4 40 8,000 Modified Com- Conly and Barbara Marshall, and petitive. Don Opie. ORÐ56579 ...... T.27S., R.34E., sec. 23, S1⁄2SW1⁄4; 160 32,000 Modified Com- Conly and Barbara Marshall, Don- sec. 26, N1⁄2NW1⁄4. petitive. ald and Susan Ramsey, Carol Temple, and Don Opie.
The following rights, reservations, Department of Transportation (ODOT) 60 days from the date of sale to remove and conditions will be included on the under OR–30389, and fiber optics the improvements. patents conveying the land: facilities purposes granted to Williams All land described is hereby All Parcels—A reservation for a right- Communications, LLC under OR–54252. segregated from appropriation under the of-way for ditches and canals OR–56575—County road purposes public land laws, including the mining constructed thereon by the authority of granted to Harney County under OR– laws, pending disposition of this action, the United States. 56834. or 270 days from the date of publication OR–56575—A restriction which of this notice, whichever occurs first. OR–56577—Power line purposes constitutes a covenant running with the granted to Harney Electric Cooperative Bidding Procedures land, that the wetland riparian habitat under OR–5183, and telephone must be managed to protect and Competitive Procedures purposes granted to CenturyTel under maintain the habitat on a continuing OR–18562. The Federal Land Policy and basis. Management Act and its implementing The following patents, when issued, Access will not be guaranteed to any regulations (43 CFR 2710) provide that would be subject to the following rights- of the parcels being offered for sale, nor competitive bidding will be the general of-way held by third parties: any warranty made as to the use of the method of selling land supported by OR–56574—Power line purposes property in violation of applicable land factors such as competitive interest, granted to Harney Electric Cooperative use laws and regulations. Before accessibility, and usability of the parcel, under OR–5183, power line purposes submitting a bid, prospective purchasers regardless of adjacent ownership. granted to Idaho Power Company under should check with the appropriate city Under competitive procedures the OR–12080, fiber optics purposes granted or County planning department to verify land will be sold to any qualified bidder to CenturyTel under OR–54600, fiber approved uses. submitting the highest bid. Bidding will optics facilities purposes granted to All persons, other than the successful be by sealed bid followed by an oral CenturyTel under OR–54915, U.S. bidders, claiming to own unauthorized auction to be held at 2:00 p.m. PST on Highway purposes granted to Oregon improvements on the land are allowed the second Wednesday of the month
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after July 1, 2002, at the Burns District competitive or modified competitive offered under the authority of Section Office, Bureau of Land Management, procedures. 209(b) of the Federal Land Policy and 28910 Hwy 20 West, Hines, Oregon Unsold parcels will be offered Management Act of 1976. In addition to 97738. To qualify for the oral auction competitively on a continuous basis the full purchase price, a nonrefundable bidders must submit a sealed bid until sold. Under competitive fee of $50 will be required from the meeting the requirements as stated procedures for unsold parcels the prospective purchaser for purchase of below. The highest valid sealed bid will highest valid bid received during the the mineral interests to be conveyed become the starting bid for the oral preceding month will be declared the simultaneously with the sale of the auction. Bidding in the oral auction will purchaser. Sealed bids will be accepted land. be in minimum increments of $100. The and held until the second Wednesday of EFFECTIVE DATE: On or before June 17, each month at 2:00 p.m. PST/PDT when highest bidder from the oral auction will 2002, interested persons may submit they will be opened. Openings will take be declared the prospective purchaser. comments regarding the proposed sale If no valid bids are received, the place every month until the parcels are to the Acting Three Rivers Resource parcel will be declared unsold and sold or withdrawn from sale. Area Field Manager at the address offered by unsold competitive All sealed bids must be submitted to described below. Comments or protests procedures on a continuing basis until the Burns District Office, no later 2:00 must reference a specific parcel and be sold or withdrawn from sale. p.m. PST July 1, 2002, the time of the bid opening and oral auction. The identified with the appropriate serial Modified Competitive Procedures outside of bid envelopes must be clearly number. In the absence of any Modified competitive procedures are marked with ‘‘BLM Land Sale,’’ the objections, this proposal will become allowed by the regulations (43 CFR parcel number, and the bid opening the determination of the Department of 2710.0–6(c)(3)(ii)) to provide exceptions date. Bids must be for not less than the the Interior. to competitive bidding to assure appraised market value (minimum bid). ADDRESSES: Comments, bids, and compatibility with existing and Separate bids must be submitted for inquiries should be submitted to the potential land uses. each parcel. Each sealed bid shall be Acting Three Rivers Resource Area Under modified competitive accompanied by a certified check, postal Field Manager, Bureau of Land procedures the designated bidders money order, bank draft, or cashier’s Management, 28910 Hwy 20 West, identified in the table above will be check made payable to the Department Hines, Oregon 97738. given the opportunity to match or of the Interior-BLM for not less than 20 FOR FURTHER INFORMATION CONTACT: exceed the apparent high bid. The percent of the amount bid. The bid Detailed information concerning this apparent high bid will be established by envelope must also contain a statement public land sale is available on the the highest valid sealed bid received in showing the total amount bid and the internet at
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Sec. 23, NE1⁄4NW1⁄4NW1⁄4, Any adverse comments will be Form MMS–125, End of Operations Containing 10 acres, more or less. reviewed by the State Director. In the Report (Well Summary Report)—1010– 0046. SUPPLEMENTARY INFORMATION: The Town absence of any adverse comments, the Form MMS–133, Well Activity Report of Virgin proposes to use the land to classification will become effective 60 (Weekly Activity Report)—1010–0132. construct, operate and maintain a BMX days from the date of publication of this notice. Abstract: The Outer Continental Shelf Bicycle Track. The land is not needed (OCS) Lands Act, as amended (43 U.S.C. Dated: March 20, 2002. for Federal purposes. Leasing or 1331 et seq. and 43 U.S.C. 1801 et seq.), conveying title to the affected public Kim Leany, authorizes the Secretary of the Interior land is consistent with current BLM Acting Field Office Manager. to prescribe rules and regulations to land use planning and would be in the [FR Doc. 02–10705 Filed 4–30–02; 8:45 am] administer leasing of the OCS. Such public interest. BILLING CODE 4310–DQ–P rules and regulations will apply to all The lease or patent, when issued, operations conducted under a lease. would be subject to the following terms, Operations on the OCS must preserve, conditions, and reservations: DEPARTMENT OF THE INTERIOR protect, and develop oil and natural gas 1. Provisions of the Recreation and resources in a manner which is Public Purposes Act and all applicable Minerals Management Service consistent with the need to make such regulations of the Secretary of the Agency Information Collection resources available to meet the Nation’s Interior. energy needs as rapidly as possible; to 2. A right-of-way for ditches and Activities: Proposed Collections; Comment Request balance orderly energy resource canals constructed by the authority of development with protection of human, the United States. AGENCY: Minerals Management Service marine, and coastal environments; to 3. All minerals shall be reserved to (MMS), Interior. ensure the public a fair and equitable the United States, together with the ACTION: Notice of extension and revision return on the resources of the OCS; and right to prospect for, mine, and remove of information collection forms. to preserve and maintain free enterprise the minerals. competition. Detailed information concerning this SUMMARY: To comply with the This notice pertains to the MMS action is available at the office of the Paperwork Reduction Act of 1995 forms listed previously that are used to Bureau of Land Management, St. George (PRA), we are inviting comments on submit information required under 30 Field Office, 345 E. Riverside Drive, St. forms MMS–123, MMS–123S, MMS– CFR 250, subpart D, Drilling Operations; George, Utah 84790. Upon publication 124, MMS–125, and MMS–133. The subpart E, Well-Completion Operations; of this notice in the Federal Register, current Office of Management and subpart F, Well-Workover Operations; the land will be segregated from all Budget (OMB) approval of these forms subpart G, Abandonment of Wells; and other forms of appropriation under the expires in September 2002. MMS has subpart P, Sulphur Operations. public land laws, including the general retitled and revised the forms, which we Responses are mandatory. No questions mining laws, except for leasing or will submit to OMB for approval. The of a ‘‘sensitive’’ nature are asked. MMS conveyance under the Recreation and modifications are an integral part of the will protect proprietary information Public Purposes Act and leasing under new ‘‘E-Forms Permit Process’’ we are according to 30 CFR 250.196 (Data and the mineral leasing laws. For a period of developing to provide an electronic information to be made available to the 45 days from the date of publication of option for drilling and well permitting public), 30 CFR part 252 (OCS Oil and this notice in the Federal Register, and information submission. Gas Information Program), and the interested persons may submit DATE: Submit written comments by July Freedom of Information Act (5 U.S.C. comments regarding the proposed 1, 2002. 552) and its implementing regulations classification, leasing or conveyance of (43 CFR 2). ADDRESSES: Mail or hand-carry the land to the Field Office Manager, St. To implement the Government comments to the Department of the George Field Office. Paperwork Elimination Act and to Interior; Minerals Management Service; streamline data collection, MMS is Classification Comments Attention: Rules Processing Team; Mail developing systems to provide Interested parties may submit Stop 4024; 381 Elden Street; Herndon, electronic options for lessees and comments involving the suitability of Virginia 20170–4817. operators to use in submitting the lands for a BMX bicycle track. FOR FURTHER INFORMATION CONTACT: information and requesting approvals. Comments on the classification are Alexis London, Rules Processing Team, This year, we expect to begin pilot restricted to whether the land is Engineering and Operations Division, testing the electronic submission of physically suited for the proposal, telephone (703) 787–1600. drilling and well information in a new whether the use will maximize the SUPPLEMENTARY INFORMATION: ‘‘E-Forms Permit Process.’’ In future use or uses of the land, whether Titles—OMB Control Numbers: The developing this system, we have the use is consistent with local planning new titles of the revised forms are listed determined that some revisions are and zoning, or if the use is consistent with the current titles shown in needed to the drilling and well with State and Federal programs. parenthesis. information forms discussed in this Form MMS–123, Permit to Drill a notice. The new titles and changes to Application Comments Well (Application for Permit to Drill the paper forms are intended to acquaint Interested parties may submit (APD))—1010–0044. the users with, and duplicate as closely comments regarding the specific use Form MMS–123S, Permit to Drill as possible, the E-Forms Permit Process, proposed in the Town’s application, Supplemental Information Sheet which we anticipate will be fully whether the BLM followed proper (Supplemental APD Information implemented in FY 2003. Although administrative procedures in reaching Sheet)—1010–0131. initially the E-Forms Permit Process will the decision, or any other factor not Form MMS–124, Permit to Modify a be an alternative to submitting the paper directly related to the suitability of the Well (Sundry Notices and Reports on forms, we expect that eventually it will land for BMX bicycle purposes. Wells—1010–0045. eliminate the paper forms. As indicated,
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all of the forms have been retitled and sidetracks and bypasses, as well as new ensure that levels of safety and the data fields renumbered. We have wells. environmental protection are eliminated some data fields that were Well Name, Sidetrack No., and Bypass maintained. We review the information either duplicative or no longer needed, No. (both forms)—These identifiers are concerning requests for approval or renamed some sections and data fields, added to help eliminate confusion with subsequent reporting of well- relocated data fields from one form to regard to well naming and numbering. completion, well-workover, or another, and added some data fields. It Plan Identification No. (form MMS– abandonment operations to ensure that should be noted that the added data 123)—Before drilling a new well, it procedures and equipment are fields should not impose any additional must be covered under an approved appropriate for the anticipated burden on respondents as they plan. This new data field corresponds conditions. Changes to the form include: previously included the information in with the E-Forms Permit Process. Well Name, Sidetrack No., and Bypass accompanying attachments, and are not Identifying the plan will aid the MMS No.—Approval for these ‘‘initial’’ actually new information. engineer in obtaining information from drilling activities are currently Additionally, on several of the forms, the Plan to determine if the general plan requested on form MMS–124 but will be the well location field is changed to and drilling location (surface and transferred to the revised form MMS– accommodate the more up-to-date NAD bottomhole) have been analyzed and 123. ‘‘Modifications’’ will continue to be 83 format, which will be used in the E- approved. submitted on form MMS–124 and the Forms Permit Process. Respondents List of Significant Markers assigned well name and numbers generally use location data in NAD 83 Anticipated (form MMS–123)—This identified. information is currently immersed in format, and must now convert the data Rig Name or Primary Unit—Primary the drilling prognosis attached to the in their MMS submissions to the NAD unit was added to include wireline form. Operators are required by 27 format. This is burdensome for them units, coil tubing units, and snubbing regulations to state the ‘‘estimated and inaccurate for MMS because they units, which may be used in lieu of a depths to the top of significant marker can use different conversion factors in rig to complete the permitted operation. formations’’ (30 CFR 250.414(f)(5)(iii)). their submittals. (The Gulf of Mexico The E-Forms Permit Process will The addition of this section transfers the OCS Region will update its current include the identification of the type of information from the detailed open- equipment movement onto platforms, policy discussed in NTL No. 99–G17 on format drilling prognosis currently which are designated by type and are this subject when OMB approves these included in the attachments. not named as with rig. forms.) H2S Designation and Activation Plan Proposed or Completed Work—Some The modified forms are published as Depth (form MMS–123S)—Wells operations that require approval are appendices 1 through 5 to this notice. containing H2S are only about 1 percent modified to reflect current policy. The following explains how we use the of the total but pose such a significant Plugback to Sidetrack/Bypass defines information collected on each form. In threat that MMS and Industry should plugback as abandonment of a addition to the general modifications take extra precautions in defining the sidetrack/bypass. Modify Perforations previously discussed, the significant presence of H2S-bearing formations (changing the length interval previously changes proposed for each form throughout the OCS. Adding these data approved) eliminates the operation of individually are explained. fields will allow MMS inspectors to ‘‘adding perforations.’’ Acidize with Coil • Forms MMS–123 and MMS–123S. verify that H2S safety equipment is in Tubing defines that this operation need MMS uses the information submitted to place prior to drilling through potential only be permitted when using a coil determine the conditions of a drilling H2S zones. tubing unit. Bullheading (pumping site to avoid hazards inherent in drilling Drilling Fluid Information (form down the tubing) acid into a well no operations. District Offices use the MMS–123S)—We replaced the entire longer requires a permit. information to evaluate the adequacy of drilling fluid information/statements Eliminated Data Fields—We have a lessee’s drilling, well-completion, section with a simple one-line ‘‘Yes’’ or eliminated three data fields (Field well-workover, and well-abandonment ‘‘No’’ question. Name, Unit No., and OPD No.) that are plans and equipment to determine if the Eliminated Data Fields—We have not used in approval processing. proposed operations will be conducted eliminated as many of the data fields as • Form MMS–125. District in an operationally safe manner with possible on form MMS–123 to reduce Supervisors use the information to adequate protection for the duplication with form MMS–123S, and ensure that they have accurate data on environment. Except for proprietary eliminated several that are not used in the wells under their jurisdiction and to data, the OCS Lands Act requires MMS approval processing. The form MMS– ensure compliance with approved to make available to the public the APD 123 data fields removed are: Field plans. It is also used to evaluate information. Changes to the forms Name, Unit No., OPD No., Surface and remedial action in well-equipment include: Bottom Location, Rig Name, Rig Type, failure or well-control loss situations. Proposal to Drill (form MMS–123)— Water Depth, Elevation at KB, Total Changes to the form include: This data field replaces the first item on Depth, Type of Well, Contact Name, and Well Name, Sidetrack No., and Bypass the current form MMS–123 and Contact Telephone No. In addition, we No.—These identifiers are added to help specifies the three types (new well, removed data fields for Area/Block and eliminate confusion with regard to well sidetrack, bypass) of drilling procedures Approximate Date Work Will Start from naming and numbering. for permitting. Sidetrack and bypass form MMS–123S. Kick Off Point (KOP)—The addition of drilling procedures are currently • Form MMS–124. MMS District this data field transfers the information submitted on form MMS–124. The Supervisors use the information to now located on the well schematic that modified form MMS–123 will now evaluate the adequacy of the equipment, is part of an attachment to the form. The include all drilling procedures that materials, and/or procedures that the KOP from the original well to a invoke a change in the American lessee plans to use for drilling, sidetrack or bypass indicates at what Petroleum Institute (API) well number. production, well-completion, well- depth a new unique wellbore begins. The MMS engineer will assign the workover, and well-abandonment This is critical since open hole data are approved API well number for both operations. We use the information to collected, tracked, and verified by
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wellbore. Assigning the open hole data equipment tests and drills); determine Form MMS–125: 1 hour per form; to the correct wellbore is essential to how accurately the lessee anticipated annual burden of 2,275 hours. reserve and resource estimations, well conditions and if the lessee is Form MMS–133: 1 hour per form; conservation issues, fair market value following the approved APD; and annual burden of 2,275 hours. determinations, and placing the analyze requests to revise an APD (i.e., Estimated Reporting and wellbore in the proper field. revised grade of casing or deeper casing Recordkeeping ‘‘Non-Hour Cost’’ Perforated Interval(s) this setting depth). Without this information, Burden: We have identified no ‘‘non- Completion—This section will include MMS would be unable to monitor hour cost’’ burdens associated with the three data fields for information now drilling operations from off-site. The subject forms. included on supplemental attachments alternative to requiring drilling activity Public Disclosure Statement: The PRA to form MMS–125. The data correspond reports would be to conduct many more (44 U.S.C. 3501, et seq.) provides that an to fields included in our database that onsite inspections. However, the agency may not conduct or sponsor a MMS personnel now populate. The additional inspectors and helicopters to collection of information unless it fields are: If Subsea Completion (Type transport them would not be efficient or displays a currently valid OMB control of Protection), Buoy Installed, Tree cost effective. Furthermore, lessees number. Until OMB approves a Height Above Mudline. would likely experience delays in collection of information, you are not Acid, Fracture, Cement Squeeze, obtaining timely approvals to revise obligated to respond. Plugging Program, Etc.—The data fields drilling plans because District Offices Comments: Before submitting an information collection request to OMB, from this section on current form MMS– would not have current and complete PRA section 3506(c)(2)(A) requires each 125 are relocated and modified or information. Changes to the form agency ‘‘* * * to provide notice * * * eliminated. The cement squeeze/ include: and otherwise consult with members of plugging portion is relocated to the Well Name, Sidetrack No., and Bypass the public and affected agencies Abandonment History of Well section No.—These identifiers are added to help concerning each proposed collection of and modified to obtain more relevant eliminate confusion with regard to well abandonment information on the well information * * *’’. Agencies must naming and numbering. specifically solicit comments to: (a) that is now included on supplemental Rig Name or Primary Unit—Primary attachments to form MMS–125. The evaluate whether the proposed unit was added to include wireline acid/fracture operations portion is collection of information is necessary units, coil tubing units, and snubbing eliminated. for the agency to perform its duties, units, which may be used in lieu of a Abandonment History of Well—In including whether the information is rig to complete the permitted operation. addition to the relocated cement useful; (b) evaluate the accuracy of the The E-Forms Permit Process will squeeze/plugging data, this section will agency’s estimate of the burden of the include the identification of the type of include three data fields for information proposed collection of information; (c) equipment movement onto platforms, now included on supplemental enhance the quality, usefulness, and which are designated by type and are attachments to form MMS–125. The clarity of the information to be not named as with rigs. fields are: If Stub (Type of Protection), collected; and (d) minimize the burden Buoy Installed, Stub Height Above Casing/Liner/Tubing Record—This on the respondents, including the use of Mudline. section was modified and includes data automated collection techniques or Hydrocarbon Bearing Intervals—This elements relocated from form MMS– other forms of information technology. section is renamed and includes slightly 125. This information will now be We will summarize written responses to reworded data fields from the Summary reported cumulatively on each form this notice and address them in our of Porous Zones and Formation sections MMS–133 report and completed at the submission for OMB approval, of the current MMS–125. end of the well operation. including any appropriate adjustments List of Significant Markers—This Frequency: Forms MMS–123, MMS– to the estimated burdens. section is simply renamed from the 123S, MMS–124, and MMS–125 are on Agencies must estimate both the Geologic Markers section on the current occasion; form MMS–133 is weekly. ‘‘hour’’ and ‘‘non-hour cost’’ burdens to MMS–125. Estimated Number and Description of respondents or recordkeepers resulting Eliminated Data Fields—We have Respondents: Approximately 130 from the collection of information. We eliminated three data fields (Field Federal OCS oil and gas lessees. have identified no non-hour cost Name, Unit No., and OPD No.) that are Estimated Reporting and burdens for the information collection not used in approval processing. Recordkeeping ‘‘Hour’’ Burden: We aspects of the subject forms. Therefore, Because the data are already collected estimate the following burdens for if you have costs to generate, maintain, on form MMS–133, we also eliminated submitting the paper copies of these and disclose this information, you the sections on: Casing Record; Liner/ revised forms. It should be recognized should comment and provide your total Screen Record; and former ‘‘item 77’’ that when the new E-Forms Permit capital and startup cost components or requiring a List of Electric and Other Process is fully implemented, it should annual operation, maintenance, and Logs Run, Directional Surveys, Velocity result in reduced burden hours. purchase of service components. You Surveys, and Core Analysis. The Tubing However, these anticipated burden should describe the methods you use to Record section is relocated to form reductions are not yet determined, as estimate major cost factors, including MMS–133. they will depend on the upcoming pilot system and technology acquisition, • Form MMS–133. District Office testing. The annual burden hours shown expected useful life of capital engineers review and use this for each form were the totals previously equipment, discount rate(s), and the information to: monitor the conditions estimated and approved by OMB. period over which you incur costs. You of a well and status of drilling Form MMS–123: 21⁄2 hours per form; should not include estimates for operations; be aware of the well annual burden of 4,078 hours. equipment or services purchased: (i) conditions and current drilling activity Form MMS–123S: 11⁄2 hour per form; before October 1, 1995; (ii) to comply (i.e., well depth, drilling fluid weight, annual burden of 683 hours. with requirements not associated with casing types and setting depths, Form MMS–124: 11⁄4 hours per form; the information collection; (iii) for completed well logs, and recent safety annual burden of 11,875 hours. reasons other than to provide
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information or keep records for the circumstances in which we would organizations or businesses, available Government; or (iv) as part of customary withhold from the record a respondent’s for public inspection in their entirety. and usual business or private practices. identity, as allowable by the law. If you MMS Information Collection Public Comment Policy: Our practice wish us to withhold your name and/or Clearance Officer: Jo Ann Lauterbach, is to make comments, including names address, you must state this (202) 208–7744. and home addresses of respondents, prominently at the beginning of your Dated: April 1, 2002. available for public review during comment. However, we will not E.P. Danenberger, regular business hours. Individual consider anonymous comments. We Chief, Engineering and Operations Division. respondents may request that we will make all submissions from withhold their home address from the organizations or businesses, and from Appendices 1–5: Forms MMS–123, record, which we will honor to the individuals identifying themselves as 123S, 124, 125, and 133 extent allowable by law. There may be representatives or officials of BILLING CODE 4310–MR–W
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[FR Doc. 02–10772 Filed 4–30–02; 8:45 am] enhance the quality, utility and clarity DEPARTMENT OF THE INTERIOR BILLING CODE 4310–MR–C of the information collection; and (4) ways to minimize the information Office of Surface Mining Reclamation collection burden on respondents, such and Enforcement DEPARTMENT OF THE INTERIOR as use of automated means of collection of the information. A summary of the Notice of Proposed Information Office of Surface Mining Reclamation public comments will accompany Collection for 1029–0027 and 1029– and Enforcement OSM’s submission of the information 0036 collection request to OMB. Notice of Proposed Information AGENCY: Office of Surface Mining Collection for 1029–0092 and 1029– The following information is provided Reclamation and Enforcement Interior. for the information collection: (1) Title 0107 ACTION: Notice and request for of the information collection; (2) OMB comments. AGENCY: Office of Surface Mining control number; (3) summary of the Reclamation and Enforcement. information collection activity; and (4) SUMMARY: In compliance with the ACTION: Notice and request for frequency of collection, description of Paperwork Reduction Act of 1995, the comments. the respondents, estimated total annual Office of Surface Mining Reclamation responses, and the total annual and Enforcement (OSM) is announcing SUMMARY: In compliance with the reporting and recordkeeping burden for its intention to request approval to Paperwork Reduction Act of 1995, the the collection of information. continue the collections of information Office of Surface Mining Reclamation Title: State-Federal cooperative under 30 CFR part 740, Surface Coal and Enforcement (OSM) is announcing agreements—30 CFR part 745. Mining and Reclamation Operations on its intention to request approval for the OMB Control Number: 1029–0092. Federal Lands, and 30 CFR part 780, collections of information under 30 CFR Summary: 30 CFR part 745 requires Surface Mining Permit Applications— part 745, State-Federal cooperative that States submit information when Minimum Requirements for agreements; and 30 CFR part 887, entering into a cooperative agreement Reclamation and Operation Plans. These Subsidence Insurance Program Grants. with the Secretary of the Interior. OSM information collection activities were DATES: Comments on the proposed uses the information to make findings previously approved by the Office of information collection must be received that the State has an approved program Management and Budget (OMB), and by July 1, 2002 to be assured of and will carry out the responsibilities assigned them clearance numbers 1029– consideration. mandated in the Surface Mining Control 0027 and –0036, respectively. ADDRESSES: Comments may be mailed to and Reclamation Act to regulate surface DATES: Comments on the proposed John A. Trelease, Office of Surface coal mining and reclamation activities information collection must be received Mining Reclamation and Enforcement. on Federal lands. by July 1, 2002 to be assured of 1951 Constitution Ave, NW., Room 210– Bureau Form Number: None. consideration. SIB, Washington, DC 20240. Comments Frequency of Collection: Once. ADDRESSES: Comments may be mailed to may also be submitted electronically to Description of Respondents: State John A. Trelease, Office of Surface [email protected]. governments that regulate coal Mining Reclamation and Enforcement, FOR FURTHER INFORMATION CONTACT: To operations. 1951 Constitution Ave., NW., Room request a copy of the information Total Annual Responses: 12. 210—SIB, Washington, DC 20240. collection request, explanatory Total Annual Burden Hours: 454. Comments may also be submitted information and related forms, contact Title: Subsidence Insurance Program electronically to [email protected]. John A. Trelease, at (202) 208–2783 or Grants—30 CFR part 887. FOR FURTHER INFORMATION CONTACT: To via e-mail at the address listed above. OMB Control Number: 1029–0107. request a copy of the information SUPPLEMENTARY INFORMATION: The Office Summary: States and Indian tribes collection requests, explanatory of Management and Budget (OMB) having an approved reclamation plan information and related forms, contact regulations at 5 CFR part 1320, which may establish, administer and operate John A. Trelease, at (202) 208–2783. implement provisions of the Paperwork self-sustaining State and Indian Tribe- SUPPLEMENTARY INFORMATION: OMB Reduction Act of 1995 (Pub L. 104–13), administered programs to insure private regulations at 5 CFR part 1320, which require that interested members of the property against damages caused by implementing provisions of the public and affected agencies have an land subsidence resulting from Paperwork Reduction Act of 1995 (Pub. opportunity to comment on information underground mining. States and Indian L. 104–13), require that interested collection and recordkeeping activities tribes interested in requesting monies members of the public and affected [see 5 CFR 1320.8 (d)]. This notice for their insurance programs would agencies have an opportunity to identifies information collections that apply to the Director of OSM. comment on information collection and OSM will be submitting to OMB for Bureau Form Number: None. recordkeeping activities [see 5 CFR approval. These collections are Frequency of Collection: Once. 1320.8 (d)]. This notice identifies contained in (1) 30 CFR part 745, State- Description of Respondents: States information collections that OSM will Federal cooperative agreements; and (2) and Indian tribes with approved coal be submitting to OMB for approval. 30 CFR part 887, Subsidence Insurance reclamation plans. These collections are contained in (1) 30 Program Grants. OSM will request a 3- Total Annual Responses: 1. CFR part 740, General requirements for year term of approval for each Total Annual Burden Hours: 8. surface coal mining and reclamation information collection activity. operations on Federal lands (1029– Comments are invited on: (1) The Dated: April 1, 2002. 0027); and (2) 30 CFR part 780, State- need for the collection of information Richard G. Bryson, Federal cooperative agreements (1029– for the performance of the functions of Chief, Division of Regulatory Support. 0092). OSM will request a 3-year term the agency; (2) the accuracy of the [FR Doc. 02–10642 Filed 4–30–02; 8:45 am] of approval for each information agency’s burden estimates; (3) ways to BILLING CODE 4310–05–M collection activity.
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Comments are invited on: (1) The Total Annual Responses: 325. documentation may be obtained from need for the collection of information Total Annual Burden Hours: 186,556. Debra Baker, (USITC, tel. no. 202–205– for the performance of the functions of Dated: April 5, 2002. 3180). Hearing-impaired persons can the agency; (2) the accuracy of the Richard G. Bryson, obtain information on this matter by agency’s burden estimates; (3) ways to Chief, Division of Regulatory Support. contacting the Commission’s TDD enhance the quality, utility and clarity terminal on 202–205–1810. Persons [FR Doc. 02–10643 Filed 4–30–02; 8:45 am] of the information collection; and (4) with mobility impairments who will ways to minimize the information BILLING CODE 4310–05–M need special assistance in gaining access collection burden on respondents, such to the Commission should contact the as use of automated means of collection Office of the Secretary at 202–205–2000. of the information. A summary of the INTERNATIONAL TRADE General information concerning the public comments will accompany COMMISSION Commission may also be obtained by OSM’s submission of the information accessing its internet server (http:// Submission for OMB Review; collection requests to OMB. www.usitc.gov). The following information is provided Comment Request SUPPLEMENTARY INFORMATION: for the information collection: (1) Title AGENCY: United States International (1) The proposed information of the information collection; (2) OMB Trade Commission. collection consists of five forms, namely control number; (3) summary of the ACTION: Agency proposal for the the Sample Producers’, Sample information collection activity; and (4) collection of information submitted to Importers’, Sample Purchasers’, and frequency of collection, description of the Office of Management and Budget Sample Foreign Producers’ the respondents, estimated total annual (OMB) for review; comment request. questionnaires (separate forms are responses, and the total annual provided for questionnaires issued for reporting and recordkeeping burden for SUMMARY: In accordance with the the five-year reviews) and Sample the collection of information. provisions of the Paperwork Reduction Notice of Institution for Five-Year Act of 1995 (P.L. 104–13), the Title: 30 CFR part 740—General Reviews. Commission has submitted a proposal requirements for surface coal mining (2) The types of items contained for the collection of information to OMB and reclamation operations on Federal within the sample questionnaires and for approval. The proposed information lands. institution notice are largely determined collection is a 3-year extension of the OMB Control Number: 1029–0027. by statute. Actual questions formulated Summary: Section 523 of SMCRA current ‘‘generic clearance’’ (approved for use in a specific investigation requires that a Federal lands program be by the Office of Management and depend upon such factors as the nature established to govern surface coal Budget under control No. 3117–0016) of the industry, the relevant issues, the mining and reclamation operations on under which the Commission can issue ability of respondents to supply the Federal lands. The information information collections (specifically, data, and the availability of data from requested is needed to assist the producer, importer, purchaser, and secondary sources. regulatory authority determine the foreign producer questionnaires and (3) The information collected through eligibility of an applicant to conduct certain institution notices) for the questionnaires issued under the generic surface coal mining operations on following types of import injury clearance for import injury Federal lands. investigations: antidumping, investigations are consolidated by Frequency of Collection: Once. countervailing duty, escape clause, Commission staff and form much of the Description of Respondents: market disruption, NAFTA safeguard, Applicants for surface coal mine statistical base for the Commission’s and ‘‘interference with programs of the determinations. Affirmative permits on Federal lands. USDA.’’ Any comments submitted to Total Annual Responses: 36. Commission determinations in OMB on the proposed information antidumping and countervailing duty Total Annual Burden Hours: 2,433. collection should be specific, indicating Title: 30 CFR part 780—Surface investigations result in the imposition of which part of the questionnaires or additional duties on imports entering Mining Permit Applications— study plan are objectionable, describing Minimum Requirements for the United States. If the Commission the problem in detail, and including makes an affirmative determination in a Reclamation and Operation Plan. specific revisions or language changes. OMB Control Number: 102–0036. five-year review, the existing DATES: To be assured of consideration, Summary: Sections 507(b), 508(a), antidumping or countervailing duty comments should be submitted to OMB 510(b), 515(b) and (d), and 522 of Public order will remain in place. The data within 30 days of the date this notice Law 95–87 require applicants to submit developed in escape-clause, market appears in the Federal Register. operations and reclamation plans for disruption, and interference-with- coal mining activities. Information ADDRESSES: Comments about the USDA-program investigations (if the collection is needed to determine proposal should be directed to the Commission finds affirmatively) are whether the plans will achieve the Office of Information and Regulatory used by the President/U.S. Trade reclamation and environmental Affairs, Office of Management and Representative to determine the type of protections pursuant to the Surface Budget, New Executive Office Building, relief, if any, to be provided to domestic Mining Control and Reclamation Act. Washington, DC 20503, Attention: industries. The submissions made to the Without this information, Federal and David Rostker, Desk Officer for U.S. Commission in response to the notices State regulatory authorities cannot International Trade Commission. Copies of institution of five-year reviews form review and approve permit application of any comments should be provided to the basis for the Commission’s requests. Robert Rogowsky (United States determination whether a full or Bureau Form Number: None. International Trade Commission, 500 E expedited review should be conducted. Frequency of Collection: Once. Street, SW., Washington, DC 20436). (4) Likely respondents consist of Description of Respondents: FOR FURTHER INFORMATION CONTACT: businesses (including foreign Applicants for surface coal mine Copies of the proposed collection of businesses) or farms that produce, permits. information and supporting import, or purchase products under
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investigation. Estimated total annual collection of information is presented reporting burden for the period August below. 2002–July 2005 that will result from the
TABLE 1.—PROJECTED ANNUAL BURDEN DATA, BY TYPE OF INFORMATION COLLECTION, AUGUST 2002ÐJULY 2005
Foreign pro- Institution no- Item Producer Importer ques- Purchaser ducer ques- tices for 5-year Total questionnaires tionnaires questionnaires tionnaires reviews
Estimated burden hours imposed annually for August 2002–July 2005
Number of respondents ...... 887 1,186 778 639 24 3,514 Frequency of response ...... 1 1 1 1 1 1 Total annual responses ...... 887 1,186 778 639 24 3,514 Hours per response ...... 57.5 44.0 28.0 28.0 7.4 40.7 Total hours ...... 51,002 52,184 21,784 17,892 178 143,040
Estimated burden hours imposed for August 2004–July 2005 1
Number of respondents ...... 1,278 1,708 1,264 920 46 5,216 Frequency of response ...... 1 1 1 1 1 1 Total annual responses ...... 1,278 1,708 1,264 920 46 5,216 Hours per response ...... 57.5 44.0 28.0 28.0 7.4 40.3 Total hours ...... 73,485 75,152 35,392 25,760 340 210,129 1 Twelve-month period during which the greatest response burden is anticipated; it is these figures that are listed on the OMB Form 83ÐI to en- sure that the Commission response burden will remain below the approved burden total in any one year.
No record keeping burden is known to consideration, the deadline for ON–LINE) at http://dockets.usitc.gov/ result from the proposed collection of responses is June 20, 2002. Comments eol/public. information. on the adequacy of responses may be SUPPLEMENTARY INFORMATION: By order of the Commission. filed with the Commission by July 15, Background.—On June 16, 1997, the Issued: April 25, 2002. 2002. For further information Department of Commerce issued an Marilyn R. Abbott, concerning the conduct of this review antidumping duty order on imports of and rules of general application, consult gas turbo-compressor systems from Secretary. the Commission’s Rules of Practice and Japan (62 FR 32584). The Commission is [FR Doc. 02–10776 Filed 4–30–02; 8:45 am] Procedure, part 201, subparts A through conducting a review to determine BILLING CODE 7020–02–P E (19 CFR part 201), and part 207, whether revocation of the order would subparts A, D, E, and F (19 CFR part be likely to lead to continuation or INTERNATIONAL TRADE 207). recurrence of material injury to the COMMISSION domestic industry within a reasonably EFFECTIVE DATE: May 1, 2002. foreseeable time. It will assess the [Investigation No. 731–TA–748 (Review)] FOR FURTHER INFORMATION CONTACT: adequacy of interested party responses Mary Messer (202–205–3193), Office of to this notice of institution to determine Gas Turbo-Compressor Systems From Investigations, U.S. International Trade whether to conduct a full review or an Japan Commission, 500 E Street SW., expedited review. The Commission’s AGENCY: United States International Washington, DC 20436. Hearing- determination in any expedited review Trade Commission. impaired persons can obtain will be based on the facts available, ACTION: Institution of a five-year review information on this matter by contacting which may include information concerning the antidumping duty order the Commission’s TDD terminal on 202– provided in response to this notice. on gas turbo-compressor systems from 205–1810. Persons with mobility Definitions.—The following Japan. impairments who will need special definitions apply to this review: assistance in gaining access to the (1) Subject Merchandise is the class or SUMMARY: The Commission hereby gives Commission should contact the Office kind of merchandise that is within the notice that it has instituted a review of the Secretary at 202–205–2000. scope of the five-year review, as defined pursuant to section 751(c) of the Tariff General information concerning the by the Department of Commerce. Act of 1930 (19 U.S.C. § 1675(c)) (the Commission may also be obtained by (2) The Subject Country in this review Act) to determine whether revocation of accessing its internet server (http:// is Japan. (3) The Domestic Like Product is the the antidumping duty order on gas www.usitc.gov). The public record for domestically produced product or turbo-compressor systems from Japan this investigation may be viewed on the products which are like, or in the would be likely to lead to continuation Commission’s electronic docket (EDIS– or recurrence of material injury. absence of like, most similar in characteristics and uses with, the Pursuant to section 751(c)(2) of the Act, and Budget (OMB) number is not displayed; the interested parties are requested to OMB number is 3117–0016/USITC No. 02–5–070, Subject Merchandise. In its original respond to this notice by submitting the expiration date July 31, 2002. Public reporting determination, the Commission defined information specified below to the burden for the request is estimated to average 7 the Domestic Like Product as 1 hours per response. Please send comments engineered process gas turbo- Commission; to be assured of regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade compressor systems, coextensive with 1 No response to this request for information is Commission, 500 E Street, NW, Washington, DC the scope of the investigation (i.e., required if a currently valid Office of Management 20436. whether assembled or unassembled, and
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whether complete or incomplete, Limited disclosure of business appropriate), and a certificate of service excluding revamps, replacement parts, proprietary information (BPI) under an must accompany the document (if you and repairs). administrative protective order (APO) are not a party to the review you do not (4) The Domestic Industry is the U.S. and APO service list.—Pursuant to need to serve your response). producers as a whole of the Domestic section 207.7(a) of the Commission’s Inability to provide requested Like Product, or those producers whose rules, the Secretary will make BPI information.—Pursuant to section collective output of the Domestic Like submitted in this review available to 207.61(c) of the Commission’s rules, any Product constitutes a major proportion authorized applicants under the APO interested party that cannot furnish the of the total domestic production of the issued in the review, provided that the information requested by this notice in product. In its original determination, application is made no later than 21 the requested form and manner shall the Commission defined the Domestic days after publication of this notice in notify the Commission at the earliest Industry as all producers of the the Federal Register. Authorized possible time, provide a full explanation domestic like product defined above. applicants must represent interested of why it cannot provide the requested (5) The Order Date is the date that the parties, as defined in 19 U.S.C. information, and indicate alternative antidumping duty order under review § 1677(9), who are parties to the review. forms in which it can provide became effective. In this review, the A separate service list will be equivalent information. If an interested Order Date is June 16, 1997. maintained by the Secretary for those party does not provide this notification (6) An Importer is any person or firm parties authorized to receive BPI under (or the Commission finds the engaged, either directly or through a the APO. explanation provided in the notification parent company or subsidiary, in Certification.—Pursuant to section inadequate) and fails to provide a importing the Subject Merchandise into 207.3 of the Commission’s rules, any complete response to this notice, the the United States from a foreign person submitting information to the Commission may take an adverse manufacturer or through its selling Commission in connection with this inference against the party pursuant to agent. review must certify that the information section 776(b) of the Act in making its Participation in the review and public is accurate and complete to the best of service list.—Persons, including determination in the review. the submitter’s knowledge. In making Information to be provided in industrial users of the Subject the certification, the submitter will be Merchandise and, if the merchandise is response to this Notice of Institution: As deemed to consent, unless otherwise used below, the term ‘‘firm’’ includes sold at the retail level, representative specified, for the Commission, its consumer organizations, wishing to any related firms. employees, and contract personnel to (1) The name and address of your firm participate in the review as parties must use the information provided in any or entity (including World Wide Web file an entry of appearance with the other reviews or investigations of the address if available) and name, Secretary to the Commission, as same or comparable products which the telephone number, fax number, and E- provided in section 201.11(b)(4) of the Commission conducts under Title VII of mail address of the certifying official. Commission’s rules, no later than 21 the Act, or in internal audits and (2) A statement indicating whether days after publication of this notice in investigations relating to the programs your firm/entity is a U.S. producer of the Federal Register. The Secretary will and operations of the Commission maintain a public service list containing pursuant to 5 U.S.C. Appendix 3. the Domestic Like Product, a U.S. union the names and addresses of all persons, Written submissions.—Pursuant to or worker group, a U.S. importer of the or their representatives, who are parties section 207.61 of the Commission’s Subject Merchandise, a foreign producer to the review. rules, each interested party response to or exporter of the Subject Merchandise, Former Commission employees who this notice must provide the information a U.S. or foreign trade or business are seeking to appear in Commission specified below. The deadline for filing association, or another interested party five-year reviews are reminded that they such responses is June 20, 2002. (including an explanation). If you are a are required, pursuant to 19 CFR 201.15, Pursuant to section 207.62(b) of the union/worker group or trade/business to seek Commission approval if the Commission’s rules, eligible parties (as association, identify the firms in which matter in which they are seeking to specified in Commission rule your workers are employed or which are appear was pending in any manner or 207.62(b)(1)) may also file comments members of your association. form during their Commission concerning the adequacy of responses to (3) A statement indicating whether employment. The Commission’s the notice of institution and whether the your firm/entity is willing to participate designated agency ethics official has Commission should conduct an in this review by providing information advised that a five-year review is the expedited or full review. The deadline requested by the Commission. ‘‘same particular matter’’ as the for filing such comments is July 15, (4) A statement of the likely effects of underlying original investigation for 2002. All written submissions must the revocation of the antidumping duty purposes of 19 CFR 201.15 and 18 conform with the provisions of sections order on the Domestic Industry in U.S.C. § 207, the post employment 201.8 and 207.3 of the Commission’s general and/or your firm/entity statute for Federal employees. Former rules and any submissions that contain specifically. In your response, please employees may seek informal advice BPI must also conform with the discuss the various factors specified in from Commission ethics officials with requirements of sections 201.6 and section 752(a) of the Act (19 U.S.C. respect to this and the related issue of 207.7 of the Commission’s rules. The § 1675a(a)) including the likely volume whether the employee’s participation Commission’s rules do not authorize of subject imports, likely price effects of was ‘‘personal and substantial.’’ filing of submissions with the Secretary subject imports, and likely impact of However, any informal consultation will by facsimile or electronic means. Also, imports of Subject Merchandise on the not relieve former employees of the in accordance with sections 201.16(c) Domestic Industry. obligation to seek approval to appear and 207.3 of the Commission’s rules, (5) A list of all known and currently from the Commission under its rule each document filed by a party to the operating U.S. producers of the 201.15. For ethics advice, contact Carol review must be served on all other Domestic Like Product. Identify any McCue Verratti, Deputy Agency Ethics parties to the review (as identified by known related parties and the nature of Official, at 202–205–3088. either the public or APO service list as the relationship as defined in section
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771(4)(B) of the Act (19 U.S.C. (9) If you are a producer, an exporter, published pursuant to section 207.61 of § 1677(4)(B)). or a trade/business association of the Commission’s rules. (6) A list of all known and currently producers or exporters of the Subject By order of the Commission. operating U.S. importers of the Subject Merchandise in the Subject Country, Issued: April 25, 2002. Merchandise and producers of the provide the following information on Marilyn R. Abbott, Subject Merchandise in the Subject your firm’s(s’) operations on that Secretary. Country that currently export or have product during calendar year 2001 [FR Doc. 02–10768 Filed 4–30–02; 8:45 am] exported Subject Merchandise to the (report quantity data in thousands of United States or other countries since work-hours and value data in thousands BILLING CODE 7020–02–P 1996. of U.S. dollars, landed and duty-paid at (7) If you are a U.S. producer of the the U.S. port but not including Domestic Like Product, provide the INTERNATIONAL TRADE antidumping or countervailing duties). COMMISSION following information on your firm’s If you are a trade/business association, operations on that product during provide the information, on an aggregate [Investigation No. 337–TA–446] calendar year 2001 (report value data in basis, for the firms which are members thousands of U.S. dollars, f.o.b. plant). of your association. In the Matter of Certain Ink Jet Print If you are a union/worker group or (a) Production (quantity) and, if Cartridges and Components Thereof; trade/business association, provide the known, an estimate of the percentage of Notice of Issuance of Limited information, on an aggregate basis, for total production of Subject Merchandise Exclusion Order and Cease and Desist the firms in which your workers are in the Subject Country accounted for by Orders; Termination of the employed/which are members of your your firm’s(s’) production; and Investigation association. (b) The value of your firm’s(s’) exports AGENCY: U.S. International Trade (a) Production (quantity in thousands to the United States of Subject Commission. of work-hours) and, if known, an Merchandise and, if known, an estimate ACTION: Notice. estimate of the percentage of total U.S. of the percentage of total exports to the production of the Domestic Like United States of Subject Merchandise SUMMARY: Notice is hereby given that Product accounted for by your firm’s(s’) from the Subject Country accounted for the U.S. International Trade production; by your firm’s(s’) exports. Commission determined to reverse-in- (b) The quantity (in number of trains) (10) Identify significant changes, if part the presiding administrative law and value of U.S. commercial shipments any, in the supply and demand judge’s (‘‘ALJ’’) initial determination of the Domestic Like Product produced conditions or business cycle for the (‘‘ID’’) of January 25, 2002, in the above- in your U.S. plant(s); and captioned investigation, and determined (c) The quantity (in number of trains) Domestic Like Product that have that the accused devices infringe claim and value of U.S. internal consumption/ occurred in the United States or in the 4 of U.S. Letters Patent 4,635,073 (‘‘the company transfers of the Domestic Like market for the Subject Merchandise in ‘073 patent’’), and that complainant Product produced in your U.S. plant(s). the Subject Country since the Order (8) If you are a U.S. importer or a Date, and significant changes, if any, Hewlett-Packard Company (‘‘HP’’) has trade/business association of U.S. that are likely to occur within a satisfied the technical prong of the importers of the Subject Merchandise reasonably foreseeable time. Supply domestic industry requirement with from the Subject Country, provide the conditions to consider include respect to the ‘073 patent. Having found following information on your firm’s(s’) technology; production methods; a violation of section 337 of the Tariff operations on that product during development efforts; ability to increase Act of 1930, 19 U.S.C. 1337, the calendar year 2001 (report value data in production (including the shift of Commission issued a limited exclusion thousands of U.S. dollars). If you are a production facilities used for other order and cease and desist orders, and trade/business association, provide the products and the use, cost, or terminated the investigation. information, on an aggregate basis, for availability of major inputs into FOR FURTHER INFORMATION CONTACT: the firms which are members of your production); and factors related to the Peter L. Sultan, Esq., Office of the association. ability to shift supply among different General Counsel, U.S. International (a) The value (landed, duty-paid but national markets (including barriers to Trade Commission, 500 E Street, SW., not including antidumping or importation in foreign markets or Washington, DC 20436, telephone 202– countervailing duties) of U.S. imports changes in market demand abroad). 205–3094. Copies of the limited and, if known, an estimate of the Demand conditions to consider include exclusion order and cease and desist percentage of total U.S. imports of end uses and applications; the existence order and all other nonconfidential Subject Merchandise from the Subject and availability of substitute products; documents filed in connection with this Country accounted for by your firm’s(s’) and the level of competition among the investigation are or will be available for imports; Domestic Like Product produced in the inspection during official business (b) The quantity (in number of trains) United States, Subject Merchandise hours (8:45 a.m. to 5:15 p.m.) in the and value (f.o.b. U.S. port, including produced in the Subject Country, and Office of the Secretary, U.S. antidumping and/or countervailing such merchandise from other countries. International Trade Commission, 500 E duties) of U.S. commercial shipments of (11) (Optional) A statement of Street SW., Washington, DC 20436, Subject Merchandise imported from the whether you agree with the above telephone 202–205–2000. General Subject Country; and definitions of the Domestic Like Product information concerning the Commission (c) the quantity (in number of trains) and Domestic Industry; if you disagree may also be obtained by accessing its and value (f.o.b. U.S. port, including with either or both of these definitions, Internet server (http://www.usitc.gov). antidumping and/or countervailing please explain why and provide The public record for this investigation duties) of U.S. internal consumption/ alternative definitions. may be viewed on the Commission’s company transfers of Subject Authority: This review is being electronic docket (EDIS–ON–LINE) at Merchandise imported from the Subject conducted under authority of title VII of http://dockets.usitc.gov/eol.public. Country. the Tariff Act of 1930; this notice is Hearing-impaired persons are advised
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that information on the matter can be Commission further determined that the of the state with continuous custody obtained by contacting the public interest factors enumerated in and supervision of offenders for the full Commission’s TDD terminal on 202– section 337(g)(1) did not preclude the term of their legal disposition. The 205–1810. issuance of such relief. Finally, the project will also include appropriate SUPPLEMENTARY INFORMATION: The Commission determined that bond external stakeholders involved with Commission instituted this investigation under the limited exclusion order offenders during the period of legal on the basis of a complaint filed by HP, during the Presidential review period disposition. The awardee must possess alleging a violation of section 337 of the shall be in the amount of one hundred a working knowledge of the research, Tariff Act of 1930 in the importation (100) percent of the entered value of the principles and practices associated with and sale of certain ink jet print imported articles. effective interventions (including cartridges and components thereof by This action is taken under the special needs and various responsivity reason of infringement of U.S. Letters authority of section 337 of the Tariff Act issues), and organizational change. Patent 4,827,294; 4,635,073 (‘‘the ’073 of 1930, 19 U.S.C. 1337, and section Working jointly with the NIC— patent’’); 4,680,859; 4,872,027; 210.45 of the Commission’s Rules of Community Corrections Division, the 4,992,802; and 5,409,134. The Practice and Procedure, 19 CFR 210.45. awardee will help market the program complaint named five respondents: Issued: April 25, 2002. to all 50 states and the District of Microjet Technology Co., Ltd. of Taipei, By order of the Commission. Columbia, assist with the development Taiwan; Printer Essentials of Reno, Marilyn R. Abbott, of criteria for selection, assess Nevada; Price-Less Inkjet Cartridge Secretary. organizational readiness based on each state’s application, and recommend the Company of Port Charlotte, Florida [FR Doc. 02–10775 Filed 4–30–02; 8:45 am] (‘‘Price Less’’); Cartridge Hut and statewide systems that can be assisted at BILLING CODE 7020–02–P Paperwork Plus of Sun City, California one time given the available resources. (‘‘Cartridge Hut’’); and ABCCo.net, Inc. Once the target jurisdictions have been selected, the awardee will assist the of Port Charlotte, Florida (‘‘ABC’’). The DEPARTMENT OF JUSTICE investigation was later terminated on state systems in conducting an in-depth the basis of consent order agreements National Institution of Corrections self-assessment of their current status with respect to Printer Essentials and and readiness to change regarding Cartridge Hut. Solicitation for a Cooperative evidence based practice. The awardee The ALJ issued his final ID, along Agreement: Implementing Effective will assist the state system in preparing with a recommended determination on Correctional Management of Offenders an organizational change and remedy and bonding, on January 25, in the Community development plan for the 2002. He concluded that there was a implementation of effective strategies AGENCY: violation of section 337, based on the National Institute of for the management of offenders. The following findings: (a) that the asserted Corrections, Department of Justice. implementation strategy will include claims of all of the patents at issue, ACTION: Solicitation for a Cooperative leadership identification, role except for claim 4 of the ’073 patent, are Agreement. definition, a full continuum of program infringed by respondents Microjet, components and staff competency Price-Less and ABC; and (b) that an [The National Institute of Corrections awards development at all levels of the industry exists in the United States that cooperative agreements to fund the planning, organization. NIC and the awardee will exploits each of the patents in issue, development and implementation of its work with selected systems for up to strategic plan. Unlike grants and other types three years as long as they are making except the ’073 patent. The ALJ of funding, cooperative agreements require recommended a bond of 100% of that NIC work closely with awardee to progress with their planned entered value during the Presidential achieve the stated goals. Announcements for implementation. review period, and a limited exclusion cooperative agreements are posted in the Background: The elements of order issue against Microjet, and cease Federal Register and on the NIC Web site: responsible, informed and effective and desist orders against Price-Less and www.nicic.org.] correctional practice are no longer ABC. Overview: Since the mid 1990’s the regarded as opinion but are grounded in On March 7, 2002, the Commission National Institute of Corrections (NIC) evidence. In recent years, a large body determined (1) to review the ALJ’s has promoted an awareness of evidence- of research, referred to as the ‘‘What construction of claim 4 of the ’073 based correctional practices that Works’’ literature has identified the patent and his findings of no promote pro-social behavior by common characteristics of successful infringement and no domestic industry offenders and reduce victimization. intervention. The characteristics of with respect to the ‘073 patent; (2) not These practices, based on cognitive effective interventions include: to review the remainder of the ID. On behavioral and social learning theories, 1. Support by community and review, the Commission determined have become adopted internationally policymaker partnerships. that the accused devices infringe claim under the terminology of ‘‘What 2. Support by qualified and involved 4 of the ’073 patent, and that Works’’. leadership who understand program complainant HP has satisfied the NIC is seeking an organization objectives. technical prong of the domestic industry (awardee) to work with the Institute to 3. Design and implementation based requirement with respect to the ’073 implement effective interventions in on proven theoretical models beginning patent. selected statewide correctional systems with assessment and continuing through The Commission found that each of over a four federal fiscal-year period, aftercare. the statutory requirements has been met based on availability of funds and the 4. Use of standardized and objective for the issuance of a limited exclusion awardee’s satisfactory performance. For assessments of risk and need factors to order with respect to respondent the purpose of this document, statewide make appropriate program assignment Microjet, and for the issuance of a cease systems are defined as state agency(s) or for offenders. and desist order with respect to organization of county government 5. Targeting of crime-producing respondents Price-Less and ABC. The agencies covering all geographic regions attributes and use of proven treatment
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models to prepare offenders for return agencies to move from traditional to collaboration with an NIC Project into the community. non-traditional approaches. Particularly Manager. 6. Delivery in a manner consistent those non-traditional approaches The proposal must include the with the ability and learning style of the associated with custody and following six elements; individuals being treated. administrative involvement in offender 1. A description of the process and 7. Implementation by well-trained intervention practices. The successful content of the applicants approach to a employees or contractors who deliver awardee will work with the NIC to comprehensive assessment of a proven programs as designed. insure that appropriate non-traditional jurisdiction that will obtain a clear 8. Evaluations to ensure quality. approaches are identified and understanding of the current status of 9. Targeting high-risk offenders. addressed. the organization in regard to the It is worthy to note in regard to Purpose: Because correctional principles of effective intervention evidence based practice that ‘evidence including the steps necessary for based’ means a process of testing administrators are increasingly expected to reduce, not just control, risk they development, implementation and theories and practice, never intended to program evaluation and assessment of be a closed body of knowledge and must introduce the wide range of correctional practices already the organizational culture in always open to new information. relationship to supporting change; Success in offender change requires mentioned. The purpose of the project is to allow jurisdictions committed to 2. A description of the process to be an agency infrastructure with an used in assisting the selected state informed, supportive leadership and the principles of effective intervention but facing challenges in initiating and systems in developing a plan for culture that models the principles and creating and/or further developing practices of the research based, data sustaining corresponding systematic change to receive the assistance they system-wide delivery of essential driven service approaches. Optimum evidence based principles and practices outcomes are dependent upon the full need to produce intended results. The overriding goal of the agreement is to including; offender assessment, range of staff competency; knowledge, cognitive-behavioral/social learning skill, experience, aptitude, and attitude implement evidence-based program and curriculums, and quality assurance as in service delivery. An organization’s management practices, and to develop well as management processes and decision making, personnel practices, an organizational culture that promote leadership initiatives that support such problem solving, and all other functions pro-social behavior in offenders and practices (Each of these items should be related to intervention must be reduces victimization. This project will addressed separately and with sufficient evaluated and measured against provide technical assistance to address detail to effectively communicate both evidence based standards. the variety of complex needs inherent in content and process.); Administration must understand, serve, developing and implementing research 3. A description of the process for and support the vision, principles, and based approaches to effective ongoing development and program practices of evidence-based intervention. The project will support modifications, include content and programming if it is to be successful. the type of multi disciplinary and collaborative effort shown to be most process for system evaluation; Similarly, criminal justice partners 4. A description of the process and entrusted with autonomous authority effective in enhancing and sustaining the desired changes in practices. In that methods to be used to build workgroups and/or control, i.e., paroling authorities, and leadership teams, include process law enforcement agencies, the judiciary, these intervention strategies are in many cases non-traditional this project will and methods to be used to ensure the and independent service providers both organizational culture supports the public and private must also understand also address issues that develop as individual program elements and are principles and practices of intervention; the responsibilities and boundaries 5. A description of a reporting process then to be integrated into the system. appropriate to evidence-based practice for both the selected state systems and and their respective roles in successful Application Requirements: the awardee; and offender change. Although there are Applicants must submit using OMB 6. An estimated budget based on the many aspects of offender change that are Standard Form 424, Federal Assistance above elements. Given the estimated now clearly based on evidence, the and attachments. The applications must budget and appropriation parameters successful awardee must demonstrate be concisely written, typed double outlined below applications will also the process by which they will build spaced and referenced to the project by include an estimated number of state consensus within statewide systems. the numbered title given in this systems that should be able to receive This is particularly important in regard announcement. Applicants must assistance. to the various stakeholders and prepare a proposal that describes their autonomous bodies associated with the plan to address the project purpose and Authority: Public Law 93–415 full process of offender change. objectives. The plan must include Funds Available: The award will be Many local jurisdictions have come to methodology, deliverables, management limited to $100,000 from Fiscal Year accept the elements of effective plan, and an overall project budget for 2002. In addition there will be a intervention, while they remain the full duration of the project. The $300,000 per year from Fiscal year 2003 frustrated in their ability to combine management plan and budget for the thru 2005 for an anticipated total of $1 these ‘‘best practices’’ into an integrated initial 15 months should be extensively million over the full term of the system of services that form a detailed. The management plans and initiative, dependent upon yearly continuum from assessment through budgets for subsequent 12 month funding received by NIC and the aftercare. Systematically integrating the periods are expected to be less detailed performance of the awardee. This various elements of effective offender given the greater the lead time funding will cover both direct and intervention requires many non- projected. Applicants must identify indirect costs. NIC plans to make an traditional approaches to service their key project staff, the amount of initial award in the Fiscal Year 2002 delivery. The successful awardee will be time projected for this initiative and the followed by supplemental awards for required to demonstrate an relevant expertise and experience of year 2003–2005. Funds may only be understanding of the process and each, as well as the manner in which used for activities that are linked to the problems associated with assisting they would perform all tasks in desired objectives and outcomes of the
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project. This project will be a individuals, company, organization, ACTION: Notice of availability of funds collaborative venture with the selected educational institution, individual or and solicitation for grant applications state systems, the awardee and the team with the requisite skills necessary (SGA) for Homeless Veterans’ NIC—Community Corrections Division. to successfully meet the outcome Reintegration Programs (SGA 02–09) All products from this funding effort objectives of the project. Such requisite will be in the public domain and skills must include but are not limited SUMMARY: All applicants for grant funds available to interested agencies through to expertise in the principles of effective should read this notice in its entirety. the NIC. No funds are transferred to intervention for offenders as referenced The U.S. Department of Labor, Veterans’ state or local governments. Nothing in ‘‘What Works’’ literature. Requisite Employment and Training Service contained herein shall be construed to skills must also include knowledge of (VETS), announces a grant competition obligate the parties to any expenditure correctional operations with particular for Homeless Veterans’ Reintegration Programs (HVRP) authorized under the or obligation of funds in excess or in attention to offender assessment, Homeless Veterans Comprehensive advance of appropriation in accordance cognitive-behavioral/social learning, Assistance Act of 2001. This notice with the Antideficiency Act, 31 U.S.C. and evaluation methods and the contains all of the necessary information 1341. application of such elements into a and forms needed to apply for grant Deadline for Receipt of Applications: coordinated management process. The funding. Such programs will assist All applications should be submitted in ability to promote organizational eligible veterans who are homeless by one original and 5 copies and must be development and readiness to change providing employment, training and received no later than 4 p.m., Friday, within a ‘‘What Works’’ context is also support services assistance. Under this June 21, 2002. At least one copy must required. solicitation, VETS anticipates that up to have the applicant’s original signature Review Considerations: Applications in blue ink. A cover letter must identify $1.5 million will be available for grant received under this announcement will awards in Program Year (PY) 2002 and the responsible audit agency for the be subjected to an NIC Peer Review applicant’s financial accounts. The NIC expects to award up to eleven grants. Process. The HVRP programs are designed to be application number should be written Number of Awards: One (1). on the outside of the mail or courier flexible in addressing the universal as NIC Application Number 02C05: This well as local or regional problems envelop. Applicants are encouraged to number should appear as a reference use Federal Express, UPS, or similar barring homeless veterans from the line in the cover letter and also in box workforce. The program in PY 2002 will service to ensure delivery by the due 11 of Standard Form 424 and on the date as mail at the national Institute of continue to strengthen the provision of outside of the envelope in which the comprehensive services through a case Corrections is still being delayed due to application is sent. recent events. Applications mailed or management approach, the attainment Executive Order: This program is submitted by express delivery should be of supportive service resources for subject to the provisions of Executive sent to: National Institute of Corrections, homeless veterans entering the labor Order 12372. Executive Order 12372 320 First Street, NW., Room 5007, force, and strategies for employment allows States the option of setting up a Washington, DC 20534, Attn: Director. and retention. system for reviewing applications from Hand delivered applications can be This notice describes the background, within their States for assistance under brought to 500 First Street, NW., application process, description of certain Federal programs. Applicants Washington, DC 20534. The security program activities, evaluation criteria, (other than Federally-recognized Indian office will call our front desk at (202) and reporting requirements for this 307–3106 to come to the security desk Tribal Governments) should contact SGA. The information and forms for pickup. Faxed or e-mailed their State Single Point of Contact contained in the Supplementary applications will not be accepted. (SPOC), a list of which is included in Information Section constitute the Addresses and Further Information: A the application kit (and the web page) official application package. All copy of this announcement and the along with further instructions on necessary information and forms needed required application forms can be proposed projects serving more than one to apply for grant funding are included. downloaded from the NIC web page at State. Forms or Amendments: If another www.nicic.org (Click on Cooperative Catalog of Federal Domestic Assistance copy of a Standard form is needed, go Agreements). Any specific questions Number: 16.603 online to http://www.nara.gov. To regarding the application process or a Technical Assistance/Clearinghouse. receive amendments to this Solicitation request for a hard copy of the Dated: April 24, 2002. (Please reference SGA 02–09), all applicants must register their name and announcement should be directed to Morris L. Thigpen, address with the Grant Officer at the Judy Evens, Cooperative Agreement Director, National Institute of Corrections. Control Office, National Institute of following address: U. S. Department of [FR Doc. 02–10697 Filed 4–30–02; 8:45 am] Corrections, 320 First Street, NW., Room Labor, Procurement Services Center, 5007, Washington, DC 20534 or by BILLING CODE 4410–36–M Room N–5416, 200 Constitution calling 800–995–6423 ext. 44222, metro Avenue, NW., Washington, DC 20210. area 202–307–3106, ext. 44222, or e- Closing Date: Applications are to be mail: [email protected]. All technical and/ submitted, including those hand DEPARTMENT OF LABOR or programmatic questions concerning delivered, to the address below by no later than 4:45 p.m., Eastern Standard this announcement should be directed Office of the Assistant Secretary for Time, May 31, 2002. to Mark Gornik at National Institute of Veterans’ Employment and Training Corrections, 320 First Street, NW., Room Homeless Veterans’ Reintegration ADDRESSES: Applications must be 5007, Washington, DC 20534 or by Program Competitive Grants for FY directed to the U.S. Department of calling 800–995–6423 ext 43066 metro 2002 Labor, Procurement Services Center, area 202–514–3066 or by e-mail: Attention: Cassandra Willis, Reference [email protected]. AGENCY: Office of the Assistant SGA 02–09, Room N–5416, 200 Eligible Applicants: An eligible Secretary for Veterans’ Employment and Constitution Avenue, NW., Washington, applicant is any private group of Training, Labor. DC 20210.
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FOR FURTHER INFORMATION CONTACT: All III. Application Process lobbying activities are not eligible to applicants are advised that U.S. mail receive funds under this announcement A. Potential Jurisdictions To Be Served delivery in the Washington, DC area has as Section 18 of the Lobbying Disclosure been erratic due to the recent concerns Due to the demonstration nature of Act of 1995, Public Law No. 104–65, involving anthrax contamination. All the Act, the amount of funds available, 109 Stat. 691, prohibits the award of applicants must take this into and the emphasis on establishing or Federal funds to these entities. strengthening existing linkages with consideration when preparing to meet C. Funding Levels the application deadline. It is other recipients of funds under the recommended that you confirm receipt HVCAA, the only potential jurisdictions The total amount of funds available of your application by contacting which will be served through this non- for this solicitation is $1.5 million. It is Cassandra Willis, U.S. Department of urban competition for HVRPs in PY anticipated that up to 11 awards may be Labor, Procurement Services Center, 2002 are the areas outside of the 75 U.S. made under this solicitation. Awards telephone (202) 693–4570, prior to the cities largest in population and the city are expected to range from $125,000 to closing deadline. It is recommended to of San Juan, Puerto Rico. The 75 U.S. $150,000. The Department of Labor meet the application deadline. [This is cities largest in population are listed in reserves the right to negotiate the not a toll-free number]. Appendix G. amounts to be awarded under this B. Eligible Applicants competition. Please be advised that SUPPLEMENTARY INFORMATION requests exceeding the $150,000 will be Applications for funds will be considered non-responsive. Homeless Veterans’ Reintegration accepted from State and local workforce Program Solicitation investment boards, local public D. Period of Performance I. Purpose agencies, and nonprofit organizations, The period of performance will be for including faith-based and community twelve (12) months from date of award. The U.S. Department of Labor (DOL), organizations, which have familiarity It is expected that successful applicants Veterans’ Employment and Training with the area and population to be will commence program operations Service (VETS) is requesting grant served and can administer an effective under this solicitation by July 1, 2002. applications for the provision of program. Eligible applicants will fall employment and training services in into one of the following categories: E. Second-Year Option accordance with the Homeless Veterans 1. State and Local Workforce As stated in Section II of this Part, the Reintegration Program at section 5 of the Investment Boards (WIBS) as defined in Homeless Veterans’ Reintegration Homeless Veterans Comprehensive Section 111 and 117 of the Workforce Program is authorized and codified by Assistance Act of 2001 (HVCAA), Pub. Investment Act, are eligible applicants, statute at Pub. L. No. 107–95, § 5 (2001). L. No. 107–95 (2001). These instructions as well as State and local public Should there be action by Congress to contain general program information, agencies. appropriate funds for this purpose, a requirements, and forms for application 2. Local public agency, meaning any second-year option may be considered. for funds to operate a Homeless public agency of a general purpose The Government does not, however, Veterans’ Reintegration Program political subdivision of a State which guarantee second year funding for any (HVRP). has the power to levy taxes and spend awardee. Should VETS decide that an funds, as well as general corporate and option year for funding be exercised, the II. Background police powers. (This typically refers to grantees’ performance during the first cities and counties). A State agency may Section 5 of the Homeless Veterans’ period of operations will be taken into propose in its application to serve one Comprehensive Assistance Act of 2001 consideration as follows: or more of the potential jurisdictions amended the Homeless Veterans 1. By the end of the third quarter, the located in its State. This does not Reintegration Programs at 38 U.S.C. grantee must achieve at least 75% of the preclude a city or county agency from § 2021, and provides ‘‘the twelve month total goals for Federal submitting an application to serve its Secretary***shall conduct, directly expenditures, enrollments, and own jurisdiction. or through grant or contract, such placements, or Applicants are encouraged to utilize, 2. The grantee must meet 85% of programs as the Secretary determines through sub-awards, experienced public goals for Federal expenditures, appropriate to provide job training, agencies, private nonprofit enrollments, and placements if planned counseling, and placement services organizations, and private businesses activity is NOT evenly distributed in (including job readiness and literacy and faith-based and community each quarter; and and skills training) to expedite the organizations that have an 3. The Grantee is in compliance with reintegration of homeless veterans into understanding of unemployment and all terms identified in the solicitation the labor force.’’ the barriers to employment unique to for grant applications. In accordance with the HVCAA, the homeless veterans, a familiarity with the 4. All program and fiscal reports were Assistant Secretary for Veterans’ area to be served, and the capability to submitted by the established due date Employment and Training (ASVET) is effectively provide the necessary and may be verified for accuracy. making approximately $1.5 million of services. All instructions for modifications and the funds available to award grants for 3. Also eligible to apply are private announcement of fund availability will HVRPs in selected cities in FY 2002 nonprofit organizations that have be issued at a later date. The HVRP under this competition. The Homeless operated an HVRP or similar funds for this competition are for a Veterans’ Reintegration Project was the employment and training program for maximum period of one year with a first nationwide Federal program that the homeless or veterans and proven a second year funding option. The period focused on placing homeless veterans capacity to manage grants and have or of performance will be for twelve into jobs. Both types of projects, urban will provide the necessary linkages with months from the date of the award. and rural, in the past have provided other service providers. Entities VETS expects that successful applicants valuable information on approaches that described in Section 501(c)(4) of the will commence program operations work in the different environments. Internal Revenue Codes that engage in under this solicitation on July 1, 2002.
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Program funds must be expended by The only acceptable evidence to project design. The technical proposal June 30, 2003, not including the 6- establish the date of mailing of a late will consist of a narrative not to exceed month follow up period referred to in application sent by U.S. Postal Service fifteen (15) pages double-spaced, font the budget narrative. Express Mail Next Day Service-Post size no less than 11pt. and typewritten Office to Addressee is the date entered on one side of the paper only. [The F. Submission of Proposal by the Post Office receiving clerk on the applicant must complete the forms, i.e. A cover letter, an original and two (2) ‘‘Express Mail Next Day Service-Post Quarterly Technical Performance Goals copies of the proposal must be Office to Addressee’’ label and the chart provided in the SGA.] submitted to the U.S. Department of postmark on the envelope or wrapper 1. The proposal should include an Labor, Procurement Service Office, and on the original receipt from the U.S. outreach component. It is recommended Room N–5416, 200 Constitution Postal Service. ‘‘Postmark’’ has the same that the applicants coordinate these Avenue, NW., Washington, DC 20210. meaning as defined above. Therefore, activities through veteran service To aid with the review of applications, applicants should request that the postal providers and community-based and USDOL also encourages Applicants to clerk place a legible hand cancellation faith-based organizations who have submit one additional paper copy of the ‘‘bull’s-eye’’ postmark on both the experience working and serving the application (four total). Applicants who receipt and the envelope or wrapper. veteran population. This requirement do not provide additional copies will The only acceptable evidence to can be modified to allow the project to not be penalized. The proposal must establish the time of receipt at the U.S. utilize veterans in other positions where consist of two (2) separate and distinct Department of Labor is the date/time there is direct client contact if extensive parts: (1) one completed, blue ink- stamp of the Procurement Services outreach is not needed, such as intake, signed original SF 424 grant application Center on the application wrapper or counseling, peer coaching, and follow with two (2) copies of the Technical other documentary evidence or receipt up. This requirement applies to projects Proposal; and two (2) copies of the Cost maintained by that office. Applications funded under this solicitation. Proposal. sent by other delivery services, such as 2. Projects will be required to show linkages with other programs and G. Acceptable Methods of Submission Federal Express, UPS, etc., will also be accepted; however, the applicant bears services which provide support to The grant application package must the responsibility of timely submission. homeless veterans. Coordination with be received at the designated place by All applicants are advised that U.S. the Disabled Veterans’ Outreach the date and time specified or it will not mail delivery in the Washington, DC Program (DVOP) Specialists and Local be considered. Any application received area has been erratic due to the recent Veterans’ Employment Representatives at the Office of Procurement Services concerns involving anthrax (LVER) in the jurisdiction is required. 3. Projects will be ‘‘employment after 4:45 p.m. ET, May 31, 2002, will contamination. All applicants must take focused’’. The services provided will be not be considered unless it is received this into consideration when preparing directed toward (a) increasing the before the award is made and: to meet the application deadline, as you 1. It was sent by registered or certified employability of homeless veterans assume the risk for ensuring a timely mail not later than the fifth calendar day through training or arranging for the submission; that is, if, because of these before May 31, 2002; provision of services which will enable mail problems, the Department does not 2. It is determined by the Government them to work; and (b) matching receive an application or receives it too that the late receipt was due solely to homeless veterans with potential late to give proper consideration, even mishandling by the Government after employers. receipt at the U.S. Department of Labor if it was timely mailed, the Department The following format is strongly at the address indicated; or is not required to consider the recommended: 3. It was sent by U.S. Postal Service application. 1. Need for the project: the applicant Express Mail Next Day Service-Post H. Required Content must identify the geographical area to be Office to Addressee, not later than 5:00 served and provide an estimate of the p.m. at the place of mailing two (2) There are four program activities that number of homeless veterans and their working days, excluding weekends and all applications must contain to be needs, poverty and unemployment rates Federal holidays, prior to May 31, 2002. found technically acceptable under this in the area, the gaps in the local The only acceptable evidence to SGA. These activities are: community infrastructure that establish the date of mailing of a late —Pre-Enrollment Assessments; contribute to the employment and other application sent by registered or —Employment Development Plans for barriers faced by the targeted veterans, certified mail is the U.S. Postal Service all clients; and how the project would respond to postmark on the envelope or wrapper —Case Management these needs. Include the outlook for job and on the original receipt from the U.S. —Job Placement and job retention opportunities in the service area. Postal Service. If the postmark is not follow-up (at 90 and 180 days) after 2. Approach or strategy to increase legible, an application received after the individual enters employment. employment and job retention: above closing time and date shall be The proposal will consist of two (2) Applicants must be responsive to the processed as if mailed late. ‘‘Postmark’’ separate and distinct parts, a Technical Rating Criteria contained in Section VIII means a printed, stamped or otherwise proposal and a Cost Proposal: and address all of the rating factors as placed impression (not a postage meter PART 1—THE TECHNICAL thoroughly as possible in the narrative. machine impression) that is readily PROPOSAL will consist of a narrative The applicant must: (a) provide the identifiable without further action as proposal that demonstrates: the length of training, the training having been applied and affixed by an applicant’s knowledge of the need for curriculum and how the training will employee of the U.S. Postal Service on this particular grant program; an enhance the eligible veterans’ the date of mailing. Therefore applicants understanding of the services and employment opportunities within that should request that the postal clerk activities proposed to obtain successful geographical area; (b) describe the place a legible hand cancellation outcomes for the homeless veterans specific supportive, employment and ‘‘bull’s-eye’’ postmark on both the served; and the capability to accomplish training services to be provided under receipt and the envelope or wrapper. the expected outcomes of the proposed this grant and the sequence or flow of
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such services—flow charts may be (HVET) program, JTPA IV–C program, or and on separate sheet(s), the following provided; (c) provide a plan for follow VWIP program, must include final or information: up to address retention after 90 and 180 most recent technical performance A. A breakout of all personnel costs days with participants who entered reports. For those applicants with no by position, title, salary rates, and employment. (See discussion on results prior grant experience, a summary percent of time of each position to be in Section VI. D.); and (d) include the narrative of program experience and devoted to the proposed project required chart of proposed performance employment and training performance (including sub-awardees); goals and planned expenditures listed outcomes is required. The applicant B. An explanation and breakout of in Appendix D. must also provide evidence of key staff extraordinary fringe benefit rates and 3. Linkages with other providers of capability. associated charges (i.e., rates exceeding employment and training services to the 7. Proposed housing strategy for 35% of salaries and wages); homeless veterans: Describe the linkages homeless veterans: Describe how C. An explanation of the purpose and this program will have with other housing resources for homeless veterans providers of services to homeless composition of, and method used to will be obtained or accessed. These derive the costs of each of the following: veterans outside of the HVRP grant; resources should be from linkages or include a description of the relationship travel, equipment, supplies, sub- sources other than the HVRP grant such awards/ contracts, and any other costs. with other employment and training as HUD, HHS, community housing programs such as Disabled Veterans’ The applicant must include costs of any resources, DVA leasing, or other required travel described in this Outreach Program (DVOP), the Local programs. The applicant must explain Veterans’ Employment Representatives Solicitation. Mileage charges will not whether HVRP resources will be used exceed 36.5 cents per mile; (LVER) program, and programs under and why this is necessary. the Workforce Investment Act; and list D. A plan, which includes all Nonprofit organizations must submit the type of services provided by each. associated costs, for retaining evidence of satisfactory financial Note the type of agreement in place, if participant information pertinent to a management capability, which must applicable. Linkages with the workforce longitudinal follow up survey, six (6) include recent financial and/or audit development system [including State months after the program performance statements. Employment Security Agencies (State period ends; Workforce Agencies)] must be (This information is subject to E. Description/specification of and delineated. Describe any linkages with verification by the government— justification for equipment purchases, if any other resources and/or other Veterans’ Employment and Training any. Tangible, non-expendable, personal programs for Homeless veterans. Service reserves the right to have a property having a useful life of more Indicate how the program will be representative within each State provide than one year and a unit acquisition cost coordinated with any efforts for the programmatic and fiscal information of $5,000 or more per unit must be homeless that are conducted by agencies about applicants and forward those specifically identified; and in the community. findings to the National Office during F. Identification of all sources of 4. Linkages with other federal the review of the applications). leveraged or matching funds and an agencies: Describe any program and Note: Resumes, charts, standard forms, explanation of the derivation of the resource linkages with Department of transmittal letters, and letters of support are value of matching/in-kind services. If not included in the page count. [If provided Housing and Urban Development resources/matching funds and/or the (HUD), Department of Health and include these documents as attachments to the technical proposal.] value of in-kind contributions are made Human Services (HHS), and Department available please show in Section B of of Veterans Affairs (DVA) for the PART 2—COST PROPOSAL must the Budget Information Sheet. homeless, to include the Compensated contain: (1) the Standard Form (SF) 424, Work Therapy (CWT) and Per Diem V. Participant Eligibility ‘‘Application for Federal Assistance’’, programs. Indicate how the applicant (2) the Standard Form (SF) 424A To be eligible for participation under will coordinate with any ‘‘continuum of ‘‘Budget Information Sheet’’ in HVRP, an individual must be homeless care’’ efforts for the homeless among Appendix B, and (3) a detailed cost and a veteran defined as follows: agencies in the community. 5. Proposed supportive service break out of each line item on the A. The term ‘‘homeless or homeless strategy for veterans: Describe how Budget Information Sheet. Please label individual’’ includes persons who lack supportive service resources for this page or pages the ‘‘Budget a fixed, regular, and adequate nighttime veterans will be obtained and used. If Narrative’’ and ensure that costs residence. It also includes persons resources are provided by other sources reported on the SF 424A correspond whose primary nighttime residence is or linkages, such as Federal, State, local accurately with the Budget Narrative. In either a supervised public or private or faith-based and community programs, addition to the cost proposal the shelter designed to provide temporary the applicant must fully explain the use applicants must include the Assurance living accommodations; an institution of these resources and why they are and Certification signature page, that provides a temporary residence for necessary. Appendix C. Copies of all required individuals intended to be 6. Organizational capability in forms with instructions for completion institutionalized; or a private place not providing required program activities: are provided as appendices to this SGA. designed for, or ordinarily used as, a The applicant’s relevant current or prior The Catalog of Federal Domestic regular sleeping accommodation for experience in operating employment Assistance number for this program is human beings. (Reference 42 U.S.C. and training programs should be clearly 17.805. It must be entered on the SF section 11302 (a)). described. The applicant must provide 424, Block 10. B. The term ‘‘veteran’’ means a person information showing outcomes of all who served in the active military, naval, IV. Budget Narrative Information past programs in terms of enrollments or air service, and who was discharged and placements. An applicant which As an attachment to the Budget or released therefrom under conditions has operated a HVRP or other Homeless Information Sheet (SF 424A), the other than dishonorable. [Reference 38 Veterans’ Employment and Training applicant must provide, at a minimum, U.S.C. Section 101(2)]
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VI. Project Summary —Alcohol and drug; The first phase of activity must consist —Medical; of the level of outreach that is necessary A. Program Concept and Emphasis —Post Traumatic Stress Disorder; to reach eligible veterans. Such outreach The HVRP grants under Section 5 of —Mental Health; will also include establishing contact the Homeless Veterans Comprehensive —Coordinating with MHAA Title VI with other agencies that encounter Assistance Act of 2001 are intended to programs for health care for the homeless veterans. Once the eligible address two objectives: homeless [health care programs under participants have been identified, an (1) to provide services to assist in the HVCAA]; assessment must be made of their reintegrating homeless veterans into Referral to housing assistance abilities, interests and needs. In some meaningful employment within the provided by, for example: cases, these participants may require labor force; and (2) to stimulate the —Local shelters; referrals to services such as social development of effective service —Federal Emergency Management rehabilitation, drug or alcohol treatment delivery systems that will address the Administration (FEMA) food and or a temporary shelter before they can complex problems facing homeless shelter programs; be enrolled into core training. When the veterans. —Transitional housing programs and individual is stabilized, the assessment These programs are designed to be single room occupancy housing should focus on the employability of the flexible in addressing the universal as programs funded under MHAA Title individual and their enrollment into the well as local or regional problems IV [and under the HVCAA]; program. A determination should be barring homeless veterans from the —Permanent housing programs for the made as to whether they would benefit workforce. The program in PY 2002 will handicapped homeless funded under from pre-employment preparation such continue to strengthen the development MHAA Title IV [and under the as resume writing, job search of effective service delivery systems, to HVCAA]; workshops, related counseling and case provide comprehensive services through —Department of Veterans’ Affairs management, and initial entry into the a case management approach that will programs that provide for leasing or job market through temporary jobs, address the complex problems facing sale of acquired homes to homeless sheltered work environments, or entry eligible veterans trying to transition into providers; and into classroom or on-the-job training. gainful employment, and improve —Transitional housing leased by HVRP Such services should also be noted in an strategies for employment and retention. funds (HVRP funds cannot be used to Employability Development Plan so that B. Scope of Program Design purchase housing or vehicles); successful completion of the plan may be monitored by the staff. Entry into The project design must provide for Employment and training services such as: full-time employment or a specific job the following services: training program should follow, in —Basic skills instruction; —Outreach, intake, assessment, keeping with the objective of HVRP to —Basic literacy instruction; counseling to the degree practical and bring the participant closer to self- —Remedial education activities; employment services. Outreach must sufficiency. Supportive services may —Job search activities, including job be provided at shelters, day centers, assist the participant at this stage or search workshops; soup kitchens, VA medical centers, even earlier. Job development is a and other programs for the homeless. —Job counseling; —Job preparatory training, including crucial part of the employability Program staff providing outreach resume writing and interviewing process. Wherever possible, DVOP and services should be a veteran who has skills; LVER staff must be utilized for job experience in dealing with, and an —Subsidized trial employment (Work development and placement activities understanding of the needs of the Experience); for veterans who are ready to enter homeless. —On-the-Job Training; employment or who are in need of Coordination with veterans’ services —Classroom Training; intensive case management services. programs and organizations such as: —Job placement in unsubsidized Many of these staff members have —Disabled Veterans’ Outreach Program employment; received training in case management at (DVOP) Specialists, Local Veterans’ —Placement follow up services; and the National Veterans’ Training Institute Employment Representatives (LVERs) —Services provided under WIA and have a priority of focus, assisting in the State Employment Security/Job Program Titles. those most at a disadvantage in the labor Service Agencies (SESAs) or in the market. VETS urges working hand-in- newly instituted workforce C. Results-Oriented Model hand with DVOP/LVER staff to achieve development system’s One-Stop No model is mandatory, but the economies of resources. Centers, and Veterans’ Workforce applicant must design a program that is The following program discussion Investment Programs (VWIPs); responsive to local needs, and will carry emphasizes that follow up is an integral —Department of Veterans’ Affairs (DVA) out the objectives of the program to program component. Follow up to services, including its Health Care for successfully reintegrate homeless determine whether the veteran is in the Homeless Veterans, Domiciliary, and veterans into the workforce. same or similar job at the 90 and 180 other programs, including those With the advent of implementing the day period after entering employment is offering transitional housing; and Government Performance and Results required. It is important that the grantee —Veteran service organizations such as Act (GPRA), Congress and the public are maintain contact with the veterans after The American Legion, Disabled looking for program results rather than placement to assure that employment American Veterans, the Veterans of program processes. While entering related problems are addressed. The 90 Foreign Wars, Vietnam Veterans of employment is a viable outcome, it will and 180 day follow up is fundamental America, and the American Veterans be necessary to measure results over a to assessing the results of the program (AMVETS); longer term (retention) to determine the success. Grantees need to budget for this Referral to necessary treatment success of programs. activity so that follow up can and will services, rehabilitative services, and The following program discussion occur for those placed at or near the end counseling including, but not limited to: must be considered in a program model. of the grant performance period. Such
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results will be reported in the final Representatives from the State Panel Review Criteria technical performance report. Employment Service Agencies, veteran A. Need for the Project: 15 points Retention of records will be reflected service organization, military personnel, in the Special Grant Provisions to be civic leaders, and a variety of other The applicant will document the provided at the time of any award. interested persons and organizations. extent of need for this project, as demonstrated by: (1) the potential VII. Related HVRP Program Many services are provided on-site with referrals also made for continued number or concentration of homeless Development Activities individuals and homeless veterans in assistance after the event. This can often the proposed project area relative to Community Awareness Activities be the catalyst that enables the homeless other similar areas of jurisdiction; (2) veterans to get back into mainstream In order to promote linkages between the high rates of poverty and/or the program and local service providers society. The Department of Labor has unemployment in the proposed project (and thereby eliminate gaps or supported replication of this event. area as determined by the census or duplication in services and enhance Many such events have been held other surveys; and (3) the extent of gaps provision of assistance to participants), throughout the nation. in the local infrastructure to effectively the grantee must provide project In areas where an HVRP is operating, address the employment barriers that orientation and/or service awareness the grantees are encouraged to characterize the target population. activities that it determines are the most participate fully and offer their services feasible for the types of providers listed B. Overall Strategy to Increase for any planned Stand Down event. below. Project orientation workshops Employment and Retention: 40 points Towards this end, up to $5,000 of the conducted by grantees have been an currently requested HVRP grant funds The application must include a effective means of sharing information may be used to supplement the Stand description of the proposed approach to and revealing the availability of other providing comprehensive employment Down effort where funds are not services; they are encouraged but not and training services, including job otherwise available, and should be mandatory. Rather, the grantee will have training, job development, any employer reflected in the budget and budget the flexibility to attend service provider commitments to hire, placement, and meetings, seminars, conferences, narrative. post placement follow up services. outstation staff, develop individual VIII. Rating Criteria for Award Applicants must address their intent to service contracts, and involve other target occupations in expanding agencies in program planning. This list Applications will be reviewed by a industries, rather than declining is not exhaustive. The grantee will be DOL panel using the point scoring industries. The supportive services to be responsible for providing appropriate system specified below. Applications provided as part of the strategy of awareness, information sharing, and will be ranked based on the score promoting job readiness and job orientation activities to the following: assigned by the panel after careful retention must be indicated. The A. Providers of hands-on services to evaluation by each panel member. The applicant must identify the local human the homeless veteran, such as shelter ranking will be the primary basis to resources and sources of training to be and soup-kitchen operators, to make identify applicants as potential grantees. used for participants. A description of them fully aware of services available to Although the Government reserves the the relationship, if any, with other homeless veterans to make them job- right to award on the basis of the initial employment and training programs such ready and place them in jobs. proposal submissions, the Government as SESAs (DVOP and LVER Programs), B. Federal, State and local entitlement may establish a competitive range, VWIP, other WIA programs, and services such as the Social Security based upon the proposal evaluation, for Workforce Investment or Development Administration (SSA), Department of the purpose of selecting qualified Boards or entities where in place, must Veterans’ Affairs (DVA), State applicants. The panel’s conclusions are be presented. Applicant must indicate Employment Security Agencies (SESAs) advisory in nature and not binding on how the activities will be tailored or and their local Job Service offices, One- the Grant Officer. The government responsive to the needs of homeless Stop Centers (which integrate WIA, reserves the right to ask for clarification veterans. A participant flow chart may labor exchange, and other employment or hold discussions, but is not obligated be used to show the sequence and mix and social services), detoxification of services. facilities, etc., to familiarize them with to do so. The Government further reserves the right to select applicants Note: The applicant MUST complete the the nature and needs of homeless chart of proposed program outcomes to veterans. out of rank order if such a selection include participants served, entered C. Civic and private sector groups, would, in its opinion, result in the most employment/placements and job retention. and especially veterans’ service and effective and appropriate combination (See Appendix D) Of the 40 points possible community-based (including faith-based of funding, program and administrative in the strategy to increase employment and organizations), to describe homeless costs e.g., cost per enrollment and retention, 10 points will be awarded to grant proposals that plan on a six month veterans and their needs. placement, demonstration models, and geographical service areas. While points employment retention rate of 50 percent, or D. Stand Down Support. A ‘‘Stand 15 points will be awarded to proposals that Down’’ as it relates to homeless veterans will not be assessed for cost issues, cost show a six month employment retention rate is an event held in a locality usually for per entered employment will be given of 70 percent. three days where services are provided serious consideration in the selecting of to homeless veterans along with shelter, awards. The Grant Officer’s C. Quality and Extent of Linkages With meals, clothing, and medical attention. determination for award under SGA 02– Other Providers of Services to the This type of event is mostly volunteer 09 is the final agency action. The Homeless and to Veterans: 10 points effort, which is organized within a submission of the same proposal from The application must provide community and brings service providers any prior year HVRP or Homeless information on the quality and extent of together such as the DVA, Disabled Veterans’ Employment and Training the linkages this program will have with Veterans Outreach Program Specialists, (HVET) competition does not guarantee other providers of services to benefit the Local Veterans’ Employment an award under this Solicitation. homeless veterans in the local
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community outside of the HVRP grant. purposes, please plan on five days and period; (e) an explanation regarding For each service, the applicant must use Washington, DC as the conference why those veterans placed during the specify who the provider is, the source location. The conference will focus on grant period, but not employed at the of funding (if known), and the type of providing information and assistance on end of the grant period, are not linkages/referral system established or reporting, record keeping, and grant employed; and (f) any recommendations proposed. [Describe, to the extent requirements, and also include best to improve the program. possible, how the project would fit into practices from past projects. Costs D. Six (6) Month Final Report the community’s continuum of care associated with attending this approach to respond to homelessness conference for up to two grantee No later than 210 days after the grant and any linkages to HUD, HHS or DVA representatives will be allowed as long performance period ends, the grantee programs or resources to benefit the as they were incurred in accordance must submit a follow up report proposed program.] with Federal travel regulations. Such containing the following: 1. Final Financial Status Report (SF– D. Demonstrated Capability in Providing costs must be charged as administrative 269A). Required Program Services: 20 points costs and reflected in the proposed budget. 2. Final Narrative Report The applicant must describe its identifying—(a) the total combined relevant prior experience in operating X. Reporting Requirements (directed/assisted) number of veterans employment and training programs and The grantee will submit the reports placed during the entire grant period; providing services to participants and documents listed below: (b) the number of veterans still similar to that which is proposed under employed during follow up; (c) are the A. Financial Reports this solicitation. Specific outcomes veterans still employed at the same or achieved by the applicant must be The grantee must report outlays, similar job, if not what are the reasons; described in terms of clients placed in program income, and other financial (d) was the training received applicable jobs, etc. The applicant must also information on a quarterly basis using to jobs held; (e) wages at placement and address its capability and ability for SF 269A, Financial Status Report, Short during follow up period; (f) an timely startup of the program. The Form. This form will cite the assigned explanation regarding why those applicant should delineate its staff grant number and be submitted to the veterans placed during the grant, but not capability and ability to manage the appropriate State Director for Veterans’ employed at the end of the follow up financial aspects of a grant program, Employment and Training (DVET) no period, are not so employed; and (g) any including a recent (within the last 12 later than 30 days after the ending date recommendations to improve the months), financial statement or audit if of each Federal fiscal quarter (i.e., program. available. Final or most recent technical October 30, January 30, April 30 and reports for other relevant programs must July 30) during the grant period. XI. Administration Provisions be submitted if applicable. Because B. Program Reports A. Limitation on Administrative and prior grant experience is not a Indirect Costs requirement for this grant, some Grantees must submit a Quarterly applicants may not have any technical Technical Performance Report 30 days 1. Direct Costs for administration, reports to submit. after the end of each Federal fiscal plus any indirect charges claimed. quarter to the DVET that contains the 2. Indirect costs claimed by the E. Quality of Overall Housing Strategy: following: applicant must be based on a federally 15 points 1. a comparison of actual approved rate. A copy of the negotiated, The application must demonstrate accomplishments to established goals approved, and signed indirect cost how the applicant proposes to obtain or for the reporting period and any negotiation agreement must be access housing resources for veterans in findings related to monitoring efforts; submitted with the application. the program and entering the labor 2. An explanation for variances of 3. If the applicant does not presently force. This discussion should specify plus or minus 15% of planned program have an approved indirect cost rate, a the provisions made to access and/or expenditure goals, to include: (i) proposed rate with justification may be temporary, transitional, and permanent identification of corrective action which submitted. Successful applicants will be housing for participants through will be taken to meet the planned goals, required to negotiate an acceptable and community resources, HUD, DVA lease, and (ii) a timetable for accomplishment allowable rate with the appropriate DOL or other means. HVRP funds will not be of the corrective action. Regional Office of Cost Determination used to purchase housing or vehicles. within 90 days of grant award. Applicants can expect that the cost C. 90 Days Report Package 4. Rates traceable and trackable proposal will be reviewed for The grantee must submit no later than through the State Workforce Agency’s allowability, allocation of costs, and 90 days after the grant expiration date Cost Accounting System represent an reasonableness of placement and a final report containing the following: acceptable means of allocating costs to enrollment costs. 1. Financial Status Report (SF–269A) DOL and, therefore, can be approved for (copy to be provided following grant use in grants to State Workforce IX. Post Award Conference awards) Agencies. A post-award conference will be held 2. Technical Performance Report— for those grantees awarded PY 2002 (Program Goals) B. Allowable Costs HVRP funds from the competition. It is 3. Narrative Report identifying—(a) Determinations of allowable costs will expected to be held in August or major successes of the program; (b) be made in accordance with the September 2002. Up to two grantee obstacles encountered and actions taken following applicable Federal cost representatives must be present; a fiscal (if any) to overcome such obstacles; (c) principles: and a program representative is the total combined number of veterans State and local government—OMB recommended. The site of the Post- placed in employment during the entire Circular A–87. Award conference has not yet been grant period; (d) the number of veterans Nonprofit organizations—OMB determined, for planning and budgeting still employed at the end of the grant Circular A–122.
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C. Administrative Standards and governments and Indian tribes that Handicap in Programs and Activities Provisions receive Federal Assistance from the Receiving or Benefitting from Federal Accept as specifically provided, DOL DOL, Office of Management and Budget Financial Assistance (Incorporated by acceptance of a proposal and an award (OMB) Circular A–128 ‘‘Audits of State Reference). These rules implement, for of federal funds to sponsor any and Local Governments’’ which was recipients of federal assistance, non- program(s) does not provide a waiver of issued pursuant to the Single Audit Act discrimination provisions on the basis of 1984, 31 U.S.C. Section 7501–7507. It any grant requirements and/or of race, color, national origin, and also consolidates the audit requirements procedures. For example, the OMB handicapping condition, respectively. currently contained throughout the DOL circulars require and an entity’s 9. Appeals from non-designation will regulations. be handled under 20 CFR part 667.260 procurement procedures must require 4. 29 CFR part 97—Uniform that all procurement transactions will be Administrative Requirements for Grants 10. 29 CFR part 97—Uniform conducted, as practical, to provide open and Cooperative Agreements to State Administrative Requirements for Grants and free competition. If a proposal and Local Governments. and Cooperative Agreements to State identifies a specific entity to provide the 5. 29 CFR part 98—Government wide and Local Government. services, the DOL award does not Debarment and Suspension provide the justification or basis to sole- Signed at Washington, DC. this 23rd day of (Nonprocurement) and Government April, 2002. source the procurement, i.e., avoid wide Requirements for Drug-Free Lawrence J. Kuss, competition. Workplace (Grants). All grants will be subject to the 6. 29 CFR part 99—Audit Of States, Grant Officer. following administrative standards and Local Governments, and Non-profit Appendices provisions: Organization. 1. 29 CFR part 93—Lobbying. 7. Section 168(b) of WIA— Appendix A: Application for Federal 2. 29 CFR part 95—Uniform Administration of Programs Please note Assistance SF Form 424 Appendix B: Budget Information Sheet Administrative Requirements for Grants that Sections 181–195 may also apply. and Agreements with Institutions of Appendix C: Assurances and Certifications 8. 29 CFR parts 30, 31, 32, 33 and Signature Page Higher Education, Hospitals, and other 34—Equal Employment Opportunity in Appendix D: Technical Performance Goals Non-profit Organizations, and with Apprenticeship and Training; Form Commercial Organizations. Nondiscrimination in Federally- Appendix E: Direct Cost Descriptions for 3. 29 CFR Part 96—Federal Standards Assisted Programs of the Department of Applicants and Sub-Applicants for Audit of Federally Funded Grants, Labor, Effectuation of Title VI of the Appendix F: The Glossary of Terms Contracts and Agreements. This rule Civil Rights Act of 1964; and Appendix G: List of 75 largest U.S. Cities implements, for State and local Nondiscrimination on the Basis of BILLING CODE 4510–79–P
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[FR Doc. 02–10494 Filed 4–30–02; 8:45 am] (VETS), announces a grant competition the attainment of supportive service BILLING CODE 4510–79–C for Homeless Veterans Reintegration resources for homeless veterans entering Programs (HVRP) authorized under the the labor force, and strategies for Homeless Veterans’ Comprehensive employment and retention. DEPARTMENT OF LABOR Assistance Act of 2001 (HVCAA). This This notice describes the background, Office of the Assistant Secretary for notice contains all of the necessary application process, description of Veterans’ Employment and Training information and forms needed to apply program activities, evaluation criteria, for grant funding. Such programs will and reporting requirements for this Homeless Veterans’ Reintegration assist eligible veterans who are SGA. The information and forms Program Competitive Grants for FY homeless by providing employment, contained in the Supplementary 2002 training and support services assistance. Information Section constitute the Under this solicitation, VETS official application package. All AGENCY: Office of the Assistant anticipates that up to $5.5 million will necessary information and forms needed Secretary for Veterans’ Employment and be available for grant awards in Program to apply for grant funding are included. Training, Labor. Year (PY) 2002 and expects to award up ACTION: Notice of availability of funds Forms or Amendments: If another to thirty grants. The HVRP programs are copy of a Standard form is needed, go and solicitation for grant applications designed to be flexible in addressing the (SGA) for Homeless Veterans’ online to http://www.nara.gov. To universal as well as local or regional Reintegration Programs (SGA 02–10). receive amendments to this Solicitation problems barring homeless veterans (Please reference SGA 02–10), all SUMMARY: All applicants for grant funds from the workforce. The program in PY applicants must register their name and should read this notice in its entirety. 2002 will continue to strengthen the address with the Grant Officer at the The U.S. Department of Labor, Veterans’ provision of comprehensive services following address: U. S. Department of Employment and Training Service through a case management approach, Labor, Procurement Services Center,
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Room N–5416, 200 Constitution HVRPs in selected cities in PY 2002 effectively provide the necessary Avenue, NW., Washington, DC 20210. under this competition. The Homeless services. Closing Date: Applications are to be Veterans’ Reintegration Project was the 3. Also eligible to apply are private submitted, including those hand first nationwide Federal program that nonprofit organizations that have delivered, to the address below by no focused on placing homeless veterans operated an HVRP or similar later than 4:45 p.m., Eastern Standard into jobs. Both types of projects, urban employment and training program for Time, May 31, 2002. and rural, in the past have provided the homeless or veterans and proven a ADDRESSES: Applications must be valuable information on approaches that capacity to manage grants and have or directed to the U.S. Department of work in the different environments. will provide the necessary linkages with Labor, Procurement Services Center, III. Application Process other service providers. Entities Attention: Cassandra Willis, Reference described in Section 501(c)(4) of the SGA 02–10, Room N–5416, 200 A. Potential Jurisdictions To Be Served Internal Revenue Codes that engage in Constitution Avenue, NW., Washington, lobbying activities are not eligible to DC 20210. Due to the demonstration nature of the Act, the amount of funds available, receive funds under this announcement FOR FURTHER INFORMATION CONTACT: All and the emphasis on establishing or as Section 18 of the Lobbying Disclosure applicants are advised that U.S. mail strengthening existing linkages with Act of 1995, Public Law No. 104–65, delivery in the Washington, DC area has other recipients of funds under the 109 Stat. 691, prohibits the award of been erratic due to the recent concerns HVCAA, the only potential jurisdictions Federal funds to these entities. involving anthrax contamination. All which will be served through this urban applicants must take this into C. Funding Levels competition for HVRPs in PY 2002 are consideration when preparing to meet the metropolitan areas of the 75 U.S. The total amount of funds available the application deadline. It is cities largest in population and the city for this solicitation is $5.5 million. It is recommended that you confirm receipt of San Juan, Puerto Rico. All potential anticipated that up to 30 awards may be of your application by contacting HVRP jurisdictions are listed in made under this solicitation. Awards Cassandra Willis, U.S. Department of Appendix G. are expected to range from $200,000 to Labor, Procurement Services Center, $250,000. The Department of Labor telephone (202) 693–4570, prior to the B. Eligible Applicants reserves the right to negotiate the closing deadline. [This is not a toll-free amounts to be awarded under this number]. Applications for funds will be accepted from State and Local competition. Please be advised that SUPPLEMENTARY INFORMATION: workforce investment boards, local requests exceeding the $250,000 will be Homeless Veterans’ Reintegration public agencies, and nonprofit considered non-responsive. Program Solicitation organizations, including faith-based and D. Period of Performance community organizations, which have I. Purpose familiarity with the area and population The period of performance will be for The U.S. Department of Labor (DOL), to be served and can administer an twelve (12) months from date of award. Veterans’ Employment and Training effective program. Eligible applicants It is expected that successful applicants Service, (VETS) is requesting grant will fall into one of the following will commence program operations applications for the provision of categories: under this solicitation by July 1, 2002. employment and training services in 1. State and Local Workforce E. Second-Year Option accordance with the Homeless Veterans’ Investment Boards (WIBS) as defined in Reintegration Program at section 5 of the Section 111 and 117 of the Workforce As stated in Section II of this Part, the Homeless Veterans’ Comprehensive Investment Act, are eligible applicants, Homeless Veterans’ Reintegration Assistance Act of 2001 (HVCAA), Pub. as well as State and local public Program is authorized and codified by L. No. 107–95 (2001). These instructions agencies. statute at Pub. L. No. 107–95, § 5 (2001). contain general program information, Should there be action by Congress to 2. Local public agency, meaning any requirements, and forms for application appropriate funds for this purpose, a public agency of a general purpose for funds to operate a Homeless second-year option may be considered. political subdivision of a State which Veterans Reintegration Program (HVRP). The Government does not, however, has the power to levy taxes and spend guarantee second year funding for any II. Background funds, as well as general corporate and awardee. Should VETS decide that an police powers. (This typically refers to Section 5 of the Homeless Veterans option year for funding be exercised, the cities and counties.) A State agency may Comprehensive Assistance Act of 2001 grantees’ performance during the first propose in its application to serve one amended the Homeless Veterans’ period of operations will be taken into or more of the potential jurisdictions Reintegration Programs at 38 U.S.C. consideration as follows: § 2021, and provides ‘‘the Secretary located in its State. This does not 1. By the end of the third quarter, the * * * shall conduct, directly or through preclude a city or county agency from grantee must achieve at least 75% of the grant or contract, such programs as the submitting an application to serve its twelve month total goals for Federal Secretary determines appropriate to own jurisdiction. expenditures, enrollments, and provide job training, counseling, and Applicants are encouraged to utilize, placements, or placement services (including job through sub-awards, experienced public readiness and literacy and skills agencies, private nonprofit 2. The grantee must meet 85% of training) to expedite the reintegration of organizations, and private businesses goals for Federal expenditures, homeless veterans into the labor force.’’ and faith-based and community enrollments, and placements if planned In accordance with the HVCAA, the organizations that have an activity is NOT evenly distributed in Assistant Secretary for Veterans’ understanding of unemployment and each quarter; and Employment and Training (ASVET) is the barriers to employment unique to 3. The grantee is in compliance with making approximately $5.5 million of homeless veterans, a familiarity with the all terms identified in the solicitation the funds available to award grants for area to be served, and the capability to for grant applications.
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4. All program and fiscal reports were legible, an application received after the The proposal will consist of two (2) submitted by the established due date above closing time and date shall be separate and distinct parts, a technical and may be verified for accuracy. processed as if mailed late. ‘‘Postmark’’ proposal and a cost proposal: All instructions for modifications and means a printed, stamped or otherwise PART 1—THE TECHNICAL announcement of fund availability will placed impression (not a postage meter PROPOSAL will consist of a narrative be issued at a later date. The HVRP machine impression) that is readily proposal that demonstrates: the funds for this competition are for a identifiable without further action as applicant’s knowledge of the need for maximum period of one year with a having been applied and affixed by an this particular grant program; an second year funding option. The period employee of the U.S. Postal Service on understanding of the services and of performance will be for twelve the date of mailing. Therefore applicants activities proposed to obtain successful months from the date of the award. should request that the postal clerk outcomes for the homeless veterans VETS expects that successful applicants place a legible hand cancellation served; and the capability to accomplish will commence program operations ‘‘bull’s-eye’’ postmark on both the the expected outcomes of the proposed under this solicitation on July 1, 2002. receipt and the envelope or wrapper. project design. The technical proposal Program funds must be expended by The only acceptable evidence to will consist of a narrative not to exceed June 30, 2003, not including the 6- establish the date of mailing of a late fifteen (15) pages double-spaced, font month follow-up period referred to in application sent by U.S. Postal Service size no less than 11pt. and typewritten the budget narrative. Express Mail Next Day Service-Post on one side of the paper only. [The Office to Addressee is the date entered applicant must complete the forms, i.e. F. Submission of Proposal by the Post Office receiving clerk on the Quarterly Technical Performance Goals A cover letter, an original and two (2) ‘‘Express Mail Next Day Service-Post chart provided in the SGA.] copies of the proposal must be Office to Addressee’’ label and the 1. The proposal should include an submitted to the U.S. Department of postmark on the envelope or wrapper outreach component. It is recommended Labor, Procurement Service Office, and on the original receipt from the U.S. that the applicants coordinate these Room N–5416, 200 Constitution Postal Service. ‘‘Postmark’’ has the same activities through veteran service Avenue, NW., Washington, DC 20210. meaning as defined above. Therefore, providers and community-based and To aid with the review of applications, applicants should request that the postal faith-based organizations that have USDOL also encourages Applicants to clerk place a legible hand cancellation experience working and serving the submit one additional paper copy of the ‘‘bull’s-eye’’ postmark on both the veteran population. This requirement application (four total). Applicants who receipt and the envelope or wrapper. can be modified to allow the project to do not provide additional copies will The only acceptable evidence to utilize veterans in other positions where not be penalized. The proposal must establish the time of receipt at the U.S. there is direct client contact if extensive consist of two (2) separate and distinct Department of Labor is the date/time outreach is not needed, such as intake, parts: (1) One completed, blue ink- stamp of the Procurement Services counseling, peer coaching, and follow signed original SF 424 grant application Center on the application wrapper or up. This requirement applies to projects with two (2) copies of the Technical other documentary evidence or receipt funded under this solicitation. Proposal; and two (2) copies of the Cost maintained by that office. Applications 2. Projects will be required to show Proposal. sent by other delivery services, such as linkages with other programs and Federal Express, UPS, etc., will also be services which provide support to G. Acceptable Methods of Submission accepted; however, the applicant bears homeless veterans. Coordination with The grant application package must the responsibility of timely submission. the Disabled Veterans’ Outreach be received at the designated place by All applicants are advised that U.S. Program (DVOP) Specialists and Local the date and time specified or it will not mail delivery in the Washington, DC Veterans’ Employment Representatives be considered. Any application received area has been erratic due to the recent (LVER) in the jurisdiction is required. at the Office of Procurement Services concerns involving anthrax 3. Projects will be ‘‘employment after 4:45 p.m. ET, May 31, 2002, will contamination. All applicants must take focused’’. The services provided will be not be considered unless it is received this into consideration when preparing directed toward (a)increasing the before the award is made and: to meet the application deadline, as you employability of homeless veterans 1. It was sent by registered or certified assume the risk for ensuring a timely through training or arranging for the mail not later than the fifth calendar day submission; that is, if, because of these provision of services which will enable before May 31, 2002; mail problems, the Department does not them to work; and (b) matching 2. It is determined by the Government receive an application or receives it too homeless veterans with potential that the late receipt was due solely to late to give proper consideration, even employers. mishandling by the Government after if it was timely mailed, the Department The following format is strongly receipt at the U.S. Department of Labor is not required to consider the recommended: at the address indicated; or application. 1. Need for the project: the applicant 3. It was sent by U.S. Postal Service must identify the geographical area to be Express Mail Next Day Service-Post H. Required Content served and provide an estimate of the Office to Addressee, not later than 5:00 There are four program activities that number of homeless veterans and their p.m. at the place of mailing two (2) all applications must contain in order to needs, poverty and unemployment rates working days, excluding weekends and be found technically acceptable under in the area, the gaps in the local Federal holidays, prior to May 31, 2002. this SGA. These activities are: community infrastructure that The only acceptable evidence to Pre-Enrollment Assessments; contribute to the employment and other establish the date of mailing of a late Employment Development Plans for all barriers faced by the targeted veterans, application sent by registered or clients; and how the project would respond to certified mail is the U.S. Postal Service Case Management these needs. Include the outlook for job postmark on the envelope or wrapper Job Placement and job retention follow opportunities in the service area. and on the original receipt from the U.S. up (at 90 and 180 days) after 2. Approach or strategy to increase Postal Service. If the postmark is not individual enters employment. employment and job retention:
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Applicants must be responsive to the of these resources and why they are forms with instructions for completion Rating Criteria contained in Section VIII necessary. are provided as appendices to this SGA. and address all of the rating factors as 6. Organizational capability in The Catalog of Federal Domestic thoroughly as possible in the narrative. providing required program activities: Assistance number for this program is The applicant must: (a) provide the The applicant’s relevant current or prior 17.805. It must be entered on the SF 424, length of training, the training experience in operating employment Block 10. curriculum and how the training will and training programs should be clearly enhance the eligible veterans’ described. The applicant must provide IV. Budget Narrative Information employment opportunities within that information showing outcomes of all As an attachment to the Budget geographical area; (b) describe the past programs in terms of enrollments Information Sheet (SF 424A), the specific supportive, employment and and placements. An applicant which applicant must provide, at a minimum, training services to be provided under has operated a HVRP or other Homeless and on separate sheet(s), the following this grant and the sequence or flow of Veterans’ Employment and Training information: such services—flow charts may be program, JTPA IV-C program, or VWIP A. A breakout of all personnel costs provided; (c) provide a plan for follow program, must include final or most by position, title, salary rates, and up to address retention after 90 and 180 recent technical performance reports. percent of time of each position to be days with participants who entered For those applicants with no prior grant devoted to the proposed project employment. (See discussion on results experience, a summary narrative of (including subawardees); in Section VI. D.); and (d) include the program experience and employment B. An explanation and breakout of required chart of proposed performance and training performance outcomes is extraordinary fringe benefit rates and goals and planned expenditures listed required. The applicant must also associated charges (i.e., rates exceeding in Appendix D. provide evidence of key staff capability. 35% of salaries and wages); 3. Linkages with other providers of 7. Proposed housing strategy for employment and training services to the C. An explanation of the purpose and homeless veterans: Describe how composition of, and method used to homeless veterans: Describe the linkages housing resources for homeless veterans this program will have with other derive the costs of each of the following: will be obtained or accessed. These travel, equipment, supplies, subawards/ providers of services to homeless resources should be from linkages or veterans outside of the HVRP grant; contracts, and any other costs. The sources other than the HVRP grant such applicant must include costs of any include a description of the relationship as HUD, HHS, community housing with other employment and training required travel described in this resources, DVA leasing, or other Solicitation. Mileage charges will not programs such as Disabled Veterans’ programs. The applicant must explain Outreach Program (DVOP), the Local exceed 36.5 cents per mile; whether HVRP resources will be used Veterans’ Employment Representative D. A plan, which includes all and why this is necessary. (LVER) program, and programs under associated costs, for retaining Nonprofit organizations must submit the Workforce Investment Act; and list participant information pertinent to a evidence of satisfactory financial the type of services provided by each. longitudinal follow up survey, six (6) management capability, which must Note the type of agreement in place, if months after the program performance applicable. Linkages with the workforce include recent financial and/or audit period ends; development system [including State statements. (This information is subject E. Description/specification of and Employment Security Agencies (State to verification by the government— justification for equipment purchases, if Workforce Agencies)] must be Veterans’ Employment and Training any. Tangible, non-expendable, personal delineated. Describe any linkages with Service reserves the right to have a property having a useful life of more any other resources and/or other representative within each State provide than one year and a unit acquisition cost programs for Homeless veterans. programmatic and fiscal information of $5,000 or more per unit must be Indicate how the program will be about applicants and forward those specifically identified; and coordinated with any efforts for the findings to the National Office during F. Identification of all sources of homeless that are conducted by agencies the review of the applications). leveraged or matching funds and an in the community. Note: Resumes, charts, standard explanation of the derivation of the 4. Linkages with other federal forms, transmittal letters, and letters of value of matching/in-kind services. If agencies: Describe any program and support are not included in the page resources/matching funds and/or the resource linkages with Department of count. [If provided, include these value of in-kind contributions are made Housing and Urban Development documents as attachments to the available please show in Section B of (HUD), Department of Health and technical proposal.] the Budget Information Sheet. Human Services (HHS), and Department PART 2—COST PROPOSAL must V. Participant Eligibility of Veterans Affairs (DVA) for the contain: (1) The Standard Form (SF) homeless, to include the Compensated 424, ‘‘Application for Federal To be eligible for participation under Work Therapy (CWT) and Per Diem Assistance’’, (2) the Standard Form (SF) HVRP, an individual must be homeless programs. Indicate how the applicant 424A ‘‘Budget Information Sheet’’ in and a veteran defined as follows: will coordinate with any ‘‘continuum of Appendix B, and (3) a detailed cost A. The term ‘‘homeless or homeless care’’ efforts for the homeless among break out of each line item on the individual’’ includes persons who lack agencies in the community. Budget Information Sheet. Please label a fixed, regular, and adequate nighttime 5. Proposed supportive service this page or pages the ‘‘Budget residence. It also includes persons strategy for veterans: Describe how Narrative’’ and ensure that costs whose primary nighttime residence is supportive service resources for reported on the SF 424A correspond either a supervised public or private veterans will be obtained and used. If accurately with the Budget Narrative. In shelter designed to provide temporary resources are provided by other sources addition to the cost proposal the living accommodations; an institution or linkages, such as Federal, State, local applicants must include the Assurance that provides a temporary residence for or faith-based and community programs, and Certification signature page, individuals intended to be the applicant must fully explain the use Appendix C. Copies of all required institutionalized; or a private place not
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designed for, or ordinarily used as, a —Veteran service organizations such as looking for program results rather than regular sleeping accommodation for The American Legion, Disabled program processes. While entering human beings. (Reference 42 U.S.C. American Veterans, the Veterans of employment is a viable outcome, it will section 11302 (a)). Foreign Wars, Vietnam Veterans of be necessary to measure results over a B. The term ‘‘veteran’’ means a person America, and the American Veterans longer term to determine the success of who served in the active military, naval, (AMVETS); programs. The following program or air service, and who was discharged Referral to necessary treatment discussion must be considered in a or released therefrom under conditions services, rehabilitative services, and results-oriented model. The first phase other than dishonorable. [Reference 38 counseling including, but not limited to: of activity must consist of the level of U.S.C. Section 101(2)] —Alcohol and drug; outreach that is necessary to reach VI. Project Summary —Medical; eligible veterans. Such outreach will —Post Traumatic Stress Disorder; also include establishing contact with A. Program Concept and Emphasis —Mental Health; other agencies that encounter homeless The HVRP grants under Section 5 of —Coordinating with MHAA Title VI veterans. Once the eligible participants the Homeless Veterans Comprehensive programs for health care for the have been identified, an assessment Assistance Act of 2001 are intended to homeless or [health care programs must be made of their abilities, interests address two objectives: (1) To provide under the HVCAA]; and needs. In some cases, these services to assist in reintegrating Referral to housing assistance participants may require referrals to homeless veterans into meaningful provided by, for example: services such as social rehabilitation, drug or alcohol treatment or a temporary employment within the labor force; and —Local shelters; shelter before they can be enrolled into (2) to stimulate the development of —Federal Emergency Management core training. When the individual is effective service delivery systems that Administration (FEMA) food and stabilized, the assessment should focus will address the complex problems shelter programs; facing homeless veterans. —Transitional housing programs and on the employability of the individual These programs are designed to be single room occupancy housing and their enrollment into the program. flexible in addressing the universal as programs funded under MHAA Title A determination should be made as to well as local or regional problems IV [and under HVCAA]; whether they would benefit from pre- barring homeless veterans from the —Permanent housing programs for the employment preparation such as resume workforce. The program in FY 2002 will handicapped homeless funded under writing, job search workshops, related continue to strengthen the development MHAA Title IV [and under HVCAA]; counseling and case management, and of effective service delivery systems, to —Department of Veterans’ Affairs initial entry into the job market through provide comprehensive services through programs that provide for leasing or temporary jobs, sheltered work a case management approach that will sale of acquired homes to homeless environments, or entry into classroom address the complex problems facing providers; and or on-the-job training. Such services eligible veterans trying to transition into —Transitional housing leased by HVRP should also be noted in an gainful employment, and improve funds (HVRP funds cannot be used to Employability Development Plan so that strategies for employment and retention. purchase housing or vehicles); successful completion of the plan may be monitored by the staff. Entry into Employment and training services B. Scope of Program Design full-time employment or a specific job such as: The project design must provide for training program should follow, in the following services: —Basic skills instruction; keeping with the objective of HVRP to —Outreach, intake, assessment, —Basic literacy instruction; bring the participant closer to self- counseling to the degree practical, —Remedial education activities; sufficiency. Supportive services may and employment services. Outreach —Job search activities, including job assist the participant at this stage or must be provided at shelters, day search workshops; even earlier. Job development is a —Job counseling; centers, soup kitchens, VA medical crucial part of the employability —Job preparatory training, including centers, and other programs for the process. Wherever possible, DVOP and resume writing and interviewing homeless. Program staff providing LVER staff must be utilized for job skills; outreach services should be a veteran development and placement activities —Subsidized trial employment (Work who has experience in dealing with, for veterans who are ready to enter Experience); employment or who are in need of and an understanding of the needs of —On-the-Job Training; intensive case management services. the homeless. —Classroom Training; Coordination with veterans’ services —Job placement in unsubsidized Many of these staff members have programs and organizations such as: employment; received training in case management at —Disabled Veterans’ Outreach Program —Placement follow up services; and the National Veterans’ Training Institute (DVOP) Specialists, Local Veterans’ —Services provided under WIA and have a priority of focus, assisting Employment Representatives (LVERs) Program Titles. those most at a disadvantage in the labor in the State Employment Security/Job market. VETS urges working hand-in- Service Agencies (SESAs) or in the C. Results-Oriented Model hand with DVOP/LVER staff to achieve newly instituted workforce No model is mandatory, but the economies of resources. development system’s One-Stop applicant must design a program that is The following program discussion Centers, and Veterans’ Workforce responsive to local needs, and will carry emphasizes that follow-up is an integral Investment Programs (VWIPs); out the objectives of the program to program component. Follow-up to —Department of Veterans’ Affairs (DVA) successfully reintegrate homeless determine whether the veteran is in the services, including its Health Care for veterans into the workforce. same or similar job at the 90 and 180 Homeless Veterans, Domiciliary, and With the advent of implementing the day period after entering employment is other programs, including those Government Performance and Results required. It is important that the grantee offering transitional housing; and Act (GPRA), Congress and the public are maintain contact with the veterans after
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placement to assure that employment locality usually for three days where consideration in the selecting of awards. related problems are addressed. The 90 services are provided to homeless The Grant Officer’s determination for and 180 day follow-up is fundamental veterans along with shelter, meals, award under SGA 02–10 is the final to assessing the results of the program clothing, and medical attention. This agency action. The submission of the success. Grantees need to budget for this type of event is mostly volunteer effort, same proposal from any prior year activity so that follow-up can and will which is organized within a community HVRP or Homeless Veterans occur for those placed at or near the end and brings service providers together Employment and Training (HVET) of the grant performance period. Such such as the DVA, Disabled Veterans’ competition does not guarantee an results will be reported in the final Outreach Program Specialists, Local award under this Solicitation. Veterans’ Employment Representatives technical performance report. Panel Review Criteria Retention of records will be reflected from the State Employment Service in the Special Grant Provisions to be Agencies, veteran service organization, 1. Need for the Project: 15 points provided at the time of any award. military personnel, civic leaders, and a The applicant will document the variety of other interested persons and extent of need for this project, as VII. Related HVRP Program organizations. Many services are demonstrated by: (1) the potential Development Activities provided on-site with referrals also number or concentration of homeless Community Awareness Activities made for continued assistance after the individuals and homeless veterans in event. the proposed project area relative to In order to promote linkages between This can often be the catalyst that other similar areas of jurisdiction; (2) the program and local service providers enables the homeless veterans to get the rates of poverty and/or (and thereby eliminate gaps or back into mainstream society. The unemployment in the proposed project duplication in services and enhance Department of Labor has supported area as determined by the census or provision of assistance to participants), replication of this event. Many such other surveys; and (3) the extent of gaps the grantee must provide project events have been held throughout the in the local infrastructure to effectively orientation and/or service awareness nation. address the employment barriers that activities that it determines are the most In areas where an HVRP is operating, characterize the target population. feasible for the types of providers listed the grantees are encouraged to 2. Overall Strategy to Increase below. Project orientation workshops participate fully and offer their services Employment and Retention: 40 points conducted by grantees have been an for any planned Stand Down event. The application must include a effective means of sharing information Towards this end, up to $5,000 of the description of the proposed approach to and revealing the availability of other currently requested HVRP grant funds providing comprehensive employment services; they are encouraged but not may be used to supplement the Stand and training services, including job mandatory. Rather, the grantee will have Down effort where funds are not training, job development, any employer the flexibility to attend service provider otherwise available, and should be commitments to hire, placement, and meetings, seminars, conferences, reflected in the budget and budget post placement follow-up services. outstation staff, develop individual narrative. Applicants must address their intent to service contracts, and involve other target occupations in expanding agencies in program planning. This list VIII. Rating Criteria for Award industries, rather than declining is not exhaustive. The grantee will be Applications will be reviewed by a industries. The supportive services to be responsible for providing appropriate DOL panel using the point scoring provided as part of the strategy of awareness, information sharing, and system specified below. Applications promoting job readiness and job orientation activities to the following: will be ranked based on the score retention must be indicated. The A. Providers of hands-on services to assigned by the panel after careful applicant must identify the local human the homeless veteran, such as shelter evaluation by each panel member. The resources and sources of training to be and soup-kitchen operators, to make ranking will be the primary basis to used for participants. A description of them fully aware of services available to identify applicants as potential grantees. the relationship, if any, with other homeless veterans to make them job- Although the Government reserves the employment and training programs such ready and place them in jobs. right to award on the basis of the initial as SESAs (DVOP and LVER Programs), B. Federal, State and local entitlement proposal submissions, the Government VWIP, other WIA programs, and services such as the Social Security may establish a competitive range, Workforce Investment or Development Administration (SSA), Department of based upon the proposal evaluation, for Boards or entities where in place, must Veterans’ Affairs (DVA), State the purpose of selecting qualified be presented. Applicant must indicate Employment Security Agencies (SESAs) applicants. The panel’s conclusions are how the activities will be tailored or and their local Job Service offices, One- advisory in nature and not binding on responsive to the needs of homeless Stop Centers (which integrate WIA, the Grant Officer. The government veterans. A participant flow chart may labor exchange, and other employment reserves the right to ask for clarification be used to show the sequence and mix and social services), detoxification or hold discussions, but is not obligated of services. facilities, etc., to familiarize them with to do so. Note: The applicant MUST complete the nature and needs of homeless The Government further reserves the the chart of proposed program outcomes veterans. right to select applicants out of rank to include participants served, C. Civic and private sector groups, order if such a selection would, in its placement/entered employments and and especially veterans’ service and opinion, result in the most effective and job retention. (See Appendix D). Of the community-based organizations appropriate combination of funding, 40 points possible in the strategy to (including faith-based organizations), to program and administrative costs e.g., increase employment and retention, 10 describe homeless veterans and their cost per enrollment and placement, points will be awarded to grant needs. demonstration models, and geographical proposals that plan on a six-month D. Stand Down Support service areas. While points will not be employment retention rate of 50 A ‘‘Stand Down’’ as it relates to assessed for cost issues, cost per entered percent, or 15 points will be awarded to homeless veterans is an event held in a employment will be given serious proposals that show a six-month
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employment retention rate of 70 HVRP funds from the competition. It is 3. Narrative Report identifying—(a) percent. expected to be held in August or major successes of the program; (b) 3. Quality and Extent of Linkages with September 2002. Up to two grantee obstacles encountered and actions taken Other Providers of Services to the representatives must be present; a fiscal (if any) to overcome such obstacles; (c) Homeless and to Veterans: 10 points and a program representative is the total combined number of veterans The application must provide recommended. The site of the Post- placed in employment during the entire information on the quality and extent of Award conference has not yet been grant period; (d) the number of veterans the linkages this program will have with determined, for planning and budgeting still employed at the end of the grant other providers of services to benefit the purposes, please use five days and use period; (e) an explanation regarding homeless veterans in the local Washington, DC as the conference why those veterans placed during the community outside of the HVRP grant. location. The conference will focus on grant period, but not employed at the For each service, the applicant must providing information and assistance on end of the grant period, are not specify who the provider is, the source reporting, record keeping, and grant employed; and (f) any recommendations of funding (if known), and the type of requirements, and also include best to improve the program. linkages/referral system established or practices from past projects. Costs D. Six (6) Month Final Report proposed. Describe, to the extent associated with attending this possible, how the project would fit into conference for up to two grantee No later than 210 days after the grant the community’s continuum of care representatives will be allowed as long performance period ends, the grantee approach to respond to homelessness as they were incurred in accordance must submit a follow up report and any linkages to HUD, HHS or DVA with Federal travel regulations. Such containing the following: programs or resources to benefit the costs must be charged as administrative proposed program. 1. Final Financial Status Report (SF– costs and reflected in the proposed 269A). 4. Demonstrated Capability in budget. Providing Required Program Services: 2. Final Narrative Report 20 points X. Reporting Requirements identifying—(a) the total combined The applicant must describe its The grantee will submit the reports (directed/assisted) number of veterans relevant prior experience in operating and documents listed below: placed during the entire grant period; employment and training programs and (b) the number of veterans still providing services to participants A. Financial Reports employed during follow up; (c) are the similar to that which is proposed under The grantee must report outlays, veterans still employed at the same or this solicitation. Specific outcomes program income, and other financial similar job, if not what are the reasons; achieved by the applicant must be information on a quarterly basis using (d) was the training received applicable described in terms of clients placed in SF 269A, Financial Status Report, Short to jobs held; (e) wages at placement and jobs, etc. The applicant must also Form. This form will cite the assigned during follow up period; (f) an address its capacity for timely startup of grant number and be submitted to the explanation regarding why those the program. The applicant should appropriate State Director for Veterans’ veterans placed during the grant, but not delineate its staff capability and ability Employment and Training (DVET) no employed at the end of the follow up to manage the financial aspects of a later than 30 days after the ending date period, are not so employed; and (g) any grant program, including a recent of each Federal fiscal quarter (i.e., recommendations to improve the (within the last 12 months), financial October 30, January 30, April 30 and program. statement or audit if available. Final or July 30) during the grant period. most recent technical reports for other XI. Administration Provisions B. Program Reports relevant programs must be submitted if A. Limitation on Administrative and applicable. Because prior grant Grantees must submit a Quarterly Indirect Costs experience is not a requirement for this Technical Performance Report 30 days grant, some applicants may not have after the end of each Federal fiscal 1. Direct Costs for administration, any technical reports to submit. quarter to the DVET that contains the plus any indirect charges claimed. 5. Quality of Overall Housing following: 2. Indirect costs claimed by the Strategy: 15 points 1. A comparison of actual applicant must be based on a federally The application must demonstrate accomplishments to established goals approved rate. A copy of the negotiated, how the applicant proposes to obtain or for the reporting period and any approved, and signed indirect cost access housing resources for veterans in findings related to monitoring efforts; negotiation agreement must be the program and entering the labor 2. An explanation for variances of submitted with the application. force. This discussion should specify plus or minus 15% of planned program 3. If the applicant does not presently the provisions made to access and/or expenditure goals, to include: (i) have an approved indirect cost rate, a temporary, transitional, and permanent Identification of corrective action which proposed rate with justification may be housing for participants through will be taken to meet the planned goals, submitted. Successful applicants will be community resources, HUD, DVA lease, and (ii) a timetable for accomplishment required to negotiate an acceptable and or other means. HVRP funds will not be of the corrective action. allowable rate with the appropriate DOL used to purchase housing or vehicles. Regional Office of Cost Determination Applicants can expect that the cost C. 90 Days Report Package within 90 days of grant award. proposal will be reviewed for The grantee must submit no later than allowability, allocation of costs, and 90 days after the grant expiration date 4. Rates traceable and trackable reasonableness of placement and a final report containing the following: through the State Workforce Agency’s enrollment costs. 1. Financial Status Report (SF–269A) Cost Accounting System represent an (copy to be provided following grant acceptable means of allocating costs to IX. Post Award Conference awards). DOL and, therefore, can be approved for A post-award conference will be held 2. Technical Performance Report— use in grants to State Workforce for those grantees awarded PY 2002 (Program Goals). Agencies.
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B. Allowable Costs Non-profit Organizations, and with Labor, Effectuation of Title VI of the Determinations of allowable costs will Commercial Organizations. Civil Rights Act of 1964; and be made in accordance with the 3. 29 CFR Part 96—Federal Standards Nondiscrimination on the Basis of following applicable Federal cost for Audit of Federally Funded Grants, Handicap in Programs and Activities principles: Contracts and Agreements. This rule Receiving or Benefitting from Federal implements, for State and local State and local government—OMB Financial Assistance (Incorporated by governments and Indian tribes that Circular A–87 Reference). These rules implement, for Nonprofit organizations—OMB Circular receive Federal Assistance from the recipients of federal assistance, non- A–122 DOL, Office of Management and Budget discrimination provisions on the basis (OMB) Circular A–128 ‘‘Audits of State of race, color, national origin, and C. Administrative Standards and and Local Governments’’ which was handicapping condition, respectively. Provisions issued pursuant to the Single Audit Act 9. Appeals from non-designation will Accept as specifically provided, DOL of 1984, 31 U.S.C. Section 7501–7507. It be handled under 20 CFR Part 667.260 acceptance of a proposal and an award also consolidates the audit requirements of federal funds to sponsor any currently contained throughout the DOL 10. 29 CFR Part 97—Uniform program(s) does not provide a waiver of regulations. Administrative Requirements for Grants any grant requirements and/or 4. 29 CFR Part 97—Uniform and Cooperative Agreements to State procedures. For example, the OMB Administrative Requirements for Grants and Local Government. circulars require and an entity’s and Cooperative Agreements to State Signed at Washington, DC. this 23rd day of procurement procedures must require and Local Governments. April, 2002. that all procurement transactions will be 5. 29 CFR Part 98—Government wide Lawrence J. Kuss, conducted, as practical, to provide open Debarment and Suspension Grant Officer. and free competition. If a proposal (Nonprocurement) and Government identifies a specific entity to provide the wide Requirements for Drug-Free Appendices services, the DOL award does not Workplace (Grants). Appendix A: Application for Federal provide the justification or basis to sole- 6. 29 CFR Part 99—Audit Of States, Assistance SF Form 424 source the procurement, i.e., avoid Local Governments, and Non-profit Appendix B: Budget Information Sheet competition. Organization. Appendix C: Assurances and Certifications All grants will be subject to the 7. Section 168(b) of WIA— Signature Page following administrative standards and Administration of Programs. Please note Appendix D: Technical Performance Goals provisions: that Sections 181–195 may also apply. Form 1. 29 CFR Part 93—Lobbying. 8. 29 CFR Parts 30, 31, 32, 33 and Appendix E: Direct Cost Descriptions for 2. 29 CFR Part 95—Uniform 34—Equal Employment Opportunity in Applicants and Sub-Applicants Administrative Requirements for Grants Apprenticeship and Training; Appendix F: The Glossary of Terms and Agreements with Institutions of Nondiscrimination in Federally- Appendix G: List of 75 largest U.S. Cities Higher Education, Hospitals, and other Assisted Programs of the Department of BILLING CODE 4510–79–P
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[FR Doc. 02–10495 Filed 4–30–02; 8:45 am] cio/public/programs/infoguidelines/ SUPPLEMENTARY INFORMATION: On BILLING CODE 4510–79–C guidelines.htm. February 22, 2002, the Office of Management and Budget (OMB) DATES: Comments must be received on published a Federal Register Notice (67 DEPARTMENT OF LABOR or before May 31, 2002. FR 8452–8460) Guidelines for Ensuring and Maximizing the Quality, Office of the Secretary ADDRESSES: Comments on the draft guidelines must be submitted in writing Objectively, Utility, and Integrity of Draft Guidelines for Ensuring and by postal mail, fax, or e-mail to Mrs. Information Disseminated by Federal Maximizing the Quality, Objectively, Theresa M. O’Malley, Executive Office, Agencies, Republication. The guidelines Utility, and Integrity of Information Information Technology Center, state that each agency must prepared a Disseminated by the Department of Department of Labor, Room N–1301, draft report, no later than May 1, 2002, Labor; Request for Comment 2000 Constitution Avenue, NW., (as amended, Federal Register Notice Washington, DC 20210; fax number (67 FR 9797) March 4, 2002) providing AGENCY: Office of the Secretary, Labor (202) 693–4228, or e-mail the agency’s information quality ACTION: Notice. mailto:[email protected]. guidelines and explaining how such guidelines will ensure and maximize SUMMARY: The Department of Labor FOR FURTHER INFORMATION CONTACT: Mrs. the quality, objectivity, utility, and (DOL) draft Guidelines for Ensuring and Theresa M. O’Malley, Executive Office, integrity of information including Maximizing the Quality, Objectivity, Information Technology Center, statistical information disseminated by Utility, and Integrity of Information telephone (202) 693–4216 (this is not a the agency. This report must also detail Disseminated by Department of Labor toll-free number), fax number (202)693– the administrative mechanisms are available for public comment on the 4228, or e-mailmailto:Omalley- developed by that agency to allow DOL web site: http://www2.dol.gov/dol/ [email protected]. affected persons to seek and obtain
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appropriate correction of information disseminates to the public. Agency FOR FURTHER INFORMATION CONTACT: maintained and disseminated by the guidelines must be based on Laura L.S. Kimberly, Acting Director, agency that does not comply with the government-wide guidelines issued by National Archives Building, 700 OMB or the agency guidelines. Each the Office of Management and Budget Pennsylvania Avenue, NW., Room 100, agency must published a notice of (OMB). In compliance with this Washington, DC 20408, telephone (202) availability of this draft report in the statutory requirement and OMB 219–5250. Federal Register, and post this report on instructions, the MSPB has posted its Dated: April 26, 2002. draft Information Quality Guidelines on the agency’s website, to provide an Mary Ann Hadyka, opportunity for public comment. the MSPB Web site (www.mspb.gov) Committee Management Officer. The DOL has posted the draft under ‘‘What’s new.’’ The Guidelines Guidelines for Ensuring and describe the agency’s procedures for [FR Doc. 02–10760 Filed 4–30–02; 8:45 am] Maximizing the Quality, Objectively, ensuring the quality of information that BILLING CODE 7515–01–P Utility, and Integrity of Information it disseminates to the public and the Disseminated by Department of Labor in procedures by which an affected person the DOL website as referenced above in may obtain correction of information NATIONAL SCIENCE FOUNDATION the Summary section of this notice. disseminated by the MSPB that does not comply with the Guidelines. The Board Sunshine Act Meeting Signed at Washington, DC, this 23rd day of April, 2002. invites public comments on its draft AGENCY HOLDING MEETING: National Guidelines and will consider the Patrick Pizzella, Science Foundation, National Science comments received in developing its Board. Assistant Secretary for Administration and proposed final Guidelines, which must Management, Chief Information Officer. DATE AND TIME: May 8, 2002: 11 a.m.–12 be submitted to OMB for review by July Noon Closed Session; May 9, 2002: 10 [FR Doc. 02–10493 Filed 4–30–02; 8:45 am] 1, 2002. The agency’s final Guidelines a.m.–10:30 a.m. Closed Session; May 9, BILLING CODE 4510–23–M must be published by October 1, 2002. Persons who cannot access the draft 2002: 10:30 a.m.–12 Noon Open Guidelines through the Internet may Session; May 9, 2002: 12:30 p.m.–3:30 MERIT SYSTEMS PROTECTION request a paper or electronic copy by p.m. Open Session. BOARD contacting the Office of the Clerk of the PLACE: The National Science Board. Foundation, Room 1235, 4201 Wilson Information Quality Guidelines Boulevard, Arlington, VA 22230, Dated: April 25, 2002. www.nsf.gov/nsb. AGENCY: Merit Systems Protection Shannon McCarthy, STATUS: Part of this meeting will be Board. Acting Clerk of the Board. closed to the public. Part of this meeting ACTION: Notice. [FR Doc. 02–10666 Filed 4–30–02; 8:45 am] will be open to the public. BILLING CODE 7400–01–M SUMMARY: The Merit Systems Protection MATTERS TO BE CONSIDERED: Wednesday, Board (MSPB or the Board) announces May 8, 2002 that its draft information Quality Closed Session (11 a.m.–12 Noon) NATIONAL ARCHIVES AND RECORDS —Election NSB Chair, Vice Chair and Guidelines have been posted on the ADMINISTRATION two members of the Executive MSPB Web site. The Board invites Committee public comments on its draft Guidelines Information Security Oversight Office; —Closed Session Minutes, March, 2002 and will consider the comments National Industrial Security Program —NSB Member Proposal received in developing its final Policy Advisory Committee: Notice of Guidelines. Meeting Thursday, May 9, 2002 DATES: Comments are due on or before In accordance with the Federal Closed Session (10 a.m.–10:30 A.M.) June 10, 2002. Final Guidelines are to be Advisory Committee Act (5 U.S.C. —Awards and Agreements published by October 1, 2002. App.2) and implementing regulation 41 Open Session (10:30 a.m.–12:00 Noon) ADDRESSES: Submit comments to the CFR 101.6, announcement is made for Office of the Clerk of the Board, Merit the following committee meeting: —Open Session Minutes, March, 2002 Systems Protection Board, 1615 M Name of Committee: National —Closed Session Items for August, 2002 Street, NW, Washington, DC 20419. Industrial Security Program Policy —Chair’s Report Comments may be submitted by e-mail Advisory Committee (NISPPAC). —Director’s Report Date of Meeting: May 21, 2002. —Annual NSB Business to [email protected] or by facsimile to —2003 Meeting Calendar (202) 653–7130. Time of Meeting: 2 p.m. to 4 p.m. Place of Meeting: Davis-Monthan Air —Executive Committee Annual FOR FURTHER INFORMATION CONTACT: Force Base, 5555 E. Ironwood Street, Report Shannon McCarthy, Acting Clerk of the Tucson, Arizona 85707. —Committee Reports Board, 1615 M Street, NW., Washington, Purpose: To discuss National —Other Business DC 20419; telephone (202) 653–7200; Industrial Security Program policy Open Session (12:30 p.m.–3:30 p.m.) facsimile (202) 653–7130; e-mail to matters. This meeting will be open to [email protected]. —NSF Long Range Planning the public. However, due to space Environment SUPPLEMENTARY INFORMATION: Section limitations and access procedures, the —S&T Policy Context: Dr. John 515 of the Treasury & General names and telephone number of Marburger Government Appropriations Act for FY individuals planning to attend must be —NSF Planning 2001 (Public Law No. 106–554) requires submitted to the Information Security each Federal agency to publish Oversight Office (ISOO) no later than Marta Cehelsky, guidelines for ensuring and maximizing April 29, 2002. Written statements from Executive Office. the quality, objectivity, utility, and the public will be accepted in lieu of an [FR Doc. 02–10814 Filed 4–26–02; 5:00 pm] integrity of the information it opportunity for comment. BILLING CODE 7555–01–M
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NATIONAL SCIENCE FOUNDATION Source Materials License SMB–1393 government offices, it is requested that issued to Molycorp, Inc., (Molycorp), to copies of requests for hearings or National Science Foundation allow for an alternate decommissioning petitions for leave to intervene be Information Quality Guidelines; Draft schedule for its Washington, PA, site. transmitted by facsimile, as noted Notice and Request for Comment Molycorp’s license currently requires above, or by e-mail to Molycorp to decommission by August AGENCY: National Science Foundation. [email protected]. In accordance 2002, which is within 2 years of the date ACTION: Notice. with 10 CFR 2.1205(f), each request for that the decommissioning plan was a hearing must also be served, by SUMMARY: the Office of Management and approved. Molycorp has found that a delivering it personally, or by mail, to: Budget (OMB) issued government-wide number of buildings overlie contaminated areas which affects the 1. The applicant, Molycorp, Inc., 300 guidelines under section 515 of the Caldwell Avenue, Washington, PA Treasury and General Government determination of the volume of 15301, Attention: George Dawes, and, Appropriations Act for Fiscal Year 2001 contaminated material and, therefore, (Public Law 106–554) to ensure and the time it will take to clean up the site. 2. The NRC staff, addressed to the maximize the quality, objectivity, utility Molycorp, Inc. proposes to General Counsel, U.S. Nuclear and integrity of information decommission under an alternate Regulatory Commission, One White disseminated by Federal agencies. decommissioning schedule using a Flint North, 11555 Rockville Pike, OMB’s guidelines were published in the phased approach. The buildings on-site Rockville, MD 20852, or by mail Federal Register on September 28, 2001 will be demolished and the soils will be addressed to the General Council, U.S. characterized to determine an estimated (66 FR 49718), and updated on January Nuclear Regulatory Commission, volume of contaminated material. 3, 2002 (67 FR 369). A supplemental Washington, DC 20555–0001. Because Molycorp, Inc. will excavate the version of the guidelines was published contaminated soils and transport them of continuing disruptions in delivery of in the Federal Register February 22, off-site to an NRC approved facility. mail to United States government 2002 (67 FR 8452). Each Federal agency Molycorp’s proposed alternate offices, it is requested that copies be is responsible for issuing its own section decommissioning schedule shows that transmitted either by means of facsimile 515 guidelines. As a result, The all decommissioning activities will be transmission to 301–415–3725, or by e- National Science Foundation has completed by the end of 2004. mail to the [email protected]. developed corresponding information Molycorp’s request is contained in a In addition to meeting other quality guidelines. The full draft letter to NRC dated February 19, 2002. guidelines will be found at the National applicable requirements of 10 CFR part If the NRC approves this request, the 2 of NRC’s regulations, a request for a Science Foundation’s Web site at approval will be documented in a http://www.nsf.gov/home/pubinfo/ hearing filed by a person other than an license amendment to NRC License applicant must describe in detail: infoqual.htm on May 1, 2002. SMB–1393. However, before approving DATES: Comments should be received no the proposed amendment, the NRC will 1. The interest of the requester in the later than June 3, 2002, to receive full need to make the findings required by proceeding; consideration. the Atomic Energy Act of 1954, as 2. How that interest may be affected ADDRESSES: Comments may be amended, and NRC’s regulations. These by the results of the proceeding, submitted via electronic mail to findings will be documented in a safety including the reasons why the requester [email protected], via mail to evaluation report and an environmental should be permitted a hearing, with Section 515 Information Quality Officer; assessment. particular reference to the factors set out 4201 Wilson Blvd., Suite 305; Arlington, NRC hereby provides notice that this in § 2.1205(h); VA 22230; or via fax to (703) 292–9084. is a proceeding on an application for an 3. The requester’s areas of concern FOR FURTHER INFORMATION CONTACT: amendment of a license falling within about the licensing activity that is the Frederic J. Wendling; Information the scope of Subpart L, ‘‘Informal subject matter of the proceeding; and, Quality Guidelines, Room 905; 4201 Hearing Procedures for Adjudication in Wilson Boulevard; Arlington, VA 22230. Materials Licensing Proceedings,’’ of 4. The circumstance establishing that Telephone: 703–292–8741. E-mail: NRC’s rules of practice for domestic the request for a hearing is timely in [email protected]. licensing proceedings in 10 CFR part 2. accordance with § 2.1205(d). Pursuant to § 2.1205(a), any person Dated: April 22, 2002. whose interest may be affected by this FOR FURTHER INFORMATION CONTACT: The Suzanne H. Plimpton, proceeding may file a request for a application for the license amendment Reports Clearance Officer, National Science hearing in accordance with § 2.1205(d). and supporting documentation are Foundation. A request for a hearing must be filed available for inspection at NRC’s Public [FR Doc. 02–10546 Filed 4–30–02; 8:45 am] within thirty (30) days of the date of Electronic Reading Room at http:// BILLING CODE 7555–01–M publication of this Federal Register www.nrc.gov/NRC/ADAMS/index.html. notice. Any questions with respect to this The request for a hearing must be action should be referred to Tom NUCLEAR REGULATORY filed with the Office of the Secretary McLaughlin, Decommissioning Branch, COMMISSION either by hand delivery to: Rulemaking Division of Waste Management, Office and Adjudications Staff of the Office of [Docket No. 040–08778] of Nuclear Material Safety and the Secretary U.S. Nuclear Regulatory Safeguards, U.S. Nuclear Regulatory Notice of Consideration of Amendment Commission at the White Flint North, Commission, Washington, DC 20555– Request for Molycorp, Washington, 11555 Rockville Pike, Rockville, MD 0001. PA, Site and Opportunity for a Hearing 20852, facsimile (301–415–1101) or mailing to: The Secretary, U.S. Nuclear Telephone: (301) 415–5869. Fax: (301) The U.S. Nuclear Regulatory Regulatory Commission, Washington, 415–5398. Commission (NRC) is considering DC 20555–0001. Because of continuing Dated at Rockville, Maryland, this 23rd day issuance of a license amendment to disruptions in delivery of mail to U.S. of April 2002.
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For the Nuclear Regulatory Commission. PLACE: Offices of the Corporation, SUMMARY: The Pension Benefit Guaranty Tom McLaughlin, Twelfth Floor Board Room, 1100 New Corporation (PBGC) has made available Project Manager, Facilities Decommissioning York Avenue, NW., Washington, DC. a draft of its Information Quality Section, Decommissioning Branch, Division STATUS: Hearing Open to the Public at Guidelines pursuant to the requirements of Waste Management, Office of Nuclear 2:00 p.m. of the Office of Management and Material Safety and Safeguards. PURPOSE: Hearing in conjunction with Budget’s (OMB’s) Guidelines for [FR Doc. 02–10694 Filed 4–30–02; 8:45 am] each meeting of OPIC’s Board of Ensuring and Maximizing the Quality, BILLING CODE 7590–01–P Directors, to afford an opportunity for Objectivity, Utility and Integrity of any person to present views regarding Information Disseminated by Federal the activities of the Corporation. Agencies. The PBGC invites comments OFFICE OF MANAGEMENT AND Procedures: Individuals wishing to on these draft Information Quality BUDGET address the hearing orally must provide Guidelines. The draft guidelines are advance notice to OPIC’s Corporate published on the PBGC’s Web site Guidelines for Ensuring and Secretary no later than 5 p.m., Friday, (http://www.pbgc.gov). Maximizing the Quality, Objectivity, May 10, 2002. The notice must include DATES: Comments must be received on Utility, and Integrity of Information the individual’s name, organization, or before May 31, 2002. Disseminated by the Office of address, and telephone number, and a ADDRESSES: Comments may be mailed to Management and Budget concise summary of the subject matter the Office of the General Counsel, to be presented. Pension Benefit Guaranty Corporation, AGENCY: Office of Management and Oral presentations may not exceed ten 1200 K Street, NW., Washington, DC Budget. (10) minutes. The time for individual 20005–4026, or delivered to Suite 340 at ACTION: Notice of guidelines and request presentations may be reduced the above address. Comments also may for comments. proportionately, if necessary, to afford be sent by Internet e-mail to all participants who have submitted a [email protected] SUMMARY: The Office of Management timely request to participate an
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revisions to its Information Quality 552b(c)(9)(B). These caucuses may, because we consider the changes from Guidelines before submitting them in depending on the issues involved, the previous version to be extensive. We draft form for OMB review. Under OMB constitute a substantial portion of a will revise the proposed procedures, if guidelines, the PBGC must submit the meeting. required, and publish them as a final draft for OMB review no later than July Annually, the Chair compiles a report rule after we review the comments. 1, 2002. of pay issues discussed and concluded Since all comments will be made Issued in Washington, DC, on this 25th day recommendations. These reports are available for public inspection, any of April, 2002. available to the public, upon written marked ‘‘proprietary’’ or ‘‘confidential’’ Steven A. Kandarian, request to the Committee’s Secretary. will be returned to the sender without The public is invited to submit Executive Director, Pension Benefit Guaranty consideration. Corporation. material in writing to the Chair on DATES: The Postal Service must receive Federal Wage System pay matters felt to [FR Doc. 02–10644 Filed 4–30–02; 8:45 am] comments on or before May 31, 2002. be deserving of the Committee’s BILLING CODE 7708–01–P No extensions on the comment period attention. Additional information on will be granted. this meeting may be obtained by ADDRESSES: Mail or deliver written contacting the Committee’s Secretary, comments to Manager, Postage OFFICE OF PERSONNEL Office of Personnel Management, MANAGEMENT Technology Management, United States Federal Prevailing Rate Advisory Postal Service, 1735 N Lynn Street, Committee, Room 5538, 1900 E Street, Federal Prevailing Rate Advisory Room 5011, Arlington, VA 22209–6050. NW., Washington, DC 20415 (202) 606– Committee; Open Committee Meetings You can view and copy all written 1500. comments at the same address between According to the provisions of section Dated: April 25, 2002. 9 a.m. and 4 p.m., Monday through 10 of the Federal Advisory Committee Mary M. Rose, Friday. Act (Pub. L. 92–463), notice is hereby Chairperson, Federal Prevailing Rate FOR FURTHER INFORMATION CONTACT: given that the meeting of the Federal Advisory Committee. Prevailing Rate Advisory Committee Wayne Wilkerson, manager, Postage [FR Doc. 02–10739 Filed 4–30–02; 8:45 am] scheduled for Thursday, May 9, 2002, Technology Management, by fax at 703– has been cancelled and is rescheduled BILLING CODE 6325–49–P 292–4050. to meet on Thursday, May 2, 2002. SUPPLEMENTARY INFORMATION: With the The meeting will start at 10:00 a.m. expansion of postage application and will be held in Room 5A06A, Office POSTAL SERVICE methods and technologies, it is essential of Personnel Management Building, that the product submission procedures Postage Evidencing Product 1900 E Street, NW., Washington, DC. for all postage evidencing products be Submission Procedures The Federal Prevailing Rate Advisory clearly stated and defined, while Committee is composed of a Chair, five AGENCY: Postal Service. remaining flexible enough to representatives from labor unions ACTION: Notice of proposed procedure. accommodate evolving technologies. holding exclusive bargaining rights for The Postal Service evaluation process Federal blue-collar employees, and five SUMMARY: The Postal Service is can be effective and efficient if all representatives from Federal agencies. proposing to revise the product suppliers follow these procedures. In Entitlement to membership on the submission procedures for postage this way, secure and convenient Committee is provided for in 5 U.S.C. meters and other postage evidencing technology will be made available to the 5347. systems. The proposed procedures were mailing public with minimal delay and The Committee’s primary originally published as interim with the complete assurance that all responsibility is to review the Prevailing procedures in the Federal Register on Postal Service technical, quality, and Rate System and other matters pertinent January 7, 1997 [Vol. 62, No. 4, pages security requirements have been met. to establishing prevailing rates under 1001–1004], and were revised and These procedures apply to all proposed subchapter IV, chapter 53, 5 U.S.C., as published as draft procedures on postage evidencing products and amended, and from time to time advise September 2, 1998 [Vol. 63, No. 170, systems, whether the provider is new or the Office of Personnel Management. pages 46728–46732]. The draft is currently authorized by the Postal This scheduled meeting will start in procedures were again revised and Service. open session with both labor and published in the Federal Register on Title 39, Code of Federal Regulations management representatives attending. August 17, 1999 [Vol. 64, No. 158, pages (CFR) section 501.9, Security Testing, During the meeting either the labor 44760–44766], with submission of states, ‘‘The Postal Service reserves the members or the management members comments due by October 18, 1999. right to require or conduct additional may caucus separately with the Chair to After receipt and consideration of examination and testing at any time, devise strategy and formulate positions. comments, the procedures were without cause, of any meter submitted Premature disclosure of the matters amended and published in the Federal to the Postal Service for approval or discussed in these caucuses would Register on April 14, 2000 [Vol. 65, No. approved by the Postal Service for unacceptably impair the ability of the 73, pages 20211–20218], with a request manufacture and distribution.’’ For Committee to reach a consensus on the for submission of additional comments products meeting the performance matters being considered and would by May 15, 2000. criteria for postage evidencing systems disrupt substantially the disposition of The proposed procedures include that generate an information-based its business. Therefore, these caucuses extensive changes. We based the indicia (IBI), including PC Postage will be closed to the public because of changes made since the April 2000 products, the equivalent section is 39 a determination made by the Director of publication on public comments and the CFR section 502.10, Security Testing, the Office of Personnel Management experience we have gained in approving published as a proposed rule in the under the provisions of section 10(d) of postage evidencing systems. We are Federal Register on October 2, 2000. the Federal Advisory Committee Act reissuing the proposed procedures in When the Postal Service elects to retest (Pub. L. 92–463) and 5 U.S.C. revised form for public comment a previously approved product, the
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provider will be required to resubmit documentation, products, PSDs and review of the test and evaluation results the product for evaluation according to cryptographic modules, and other and, when appropriate, grants part or all of the proposed procedures. materials used or generated during authorization to distribute the product, The Postal Service will determine full or testing. as described in section 8. partial compliance with the procedures During the product’s life cycle, the At each stage of the product prior to resubmission by the provider. provider may choose to use a different submission process, the manager, PTM, The proposed submission procedures laboratory. In that event, all materials reserves the right to terminate testing if will be referenced in 39 CFR part 501 used or generated during testing and a review shows that the system as and will be published as a separate product evaluation must be transferred proposed will adversely impact Postal document titled ‘‘Postage Technology to the new laboratory. Service processes. The provider may Management, Postage Evidencing Upon completion of the testing, the resubmit the product after the problems Product Submission Procedures.’’ Postal Service may require that any or have been resolved. Product Submission Procedures for all of the following categories of information be forwarded directly from The provider can avoid unnecessary Postage Meters (Postage Evidencing delays in the review and evaluation Systems) the accredited laboratory to the manager, PTM: process by testing the product 1. General Information (1) A copy of all information that the thoroughly prior to submitting it to the independent testing laboratory and to 1.1 Independent Testing Laboratory provider gives to the laboratory, including a summary of all information the Postal Service. If the Postal Service To receive authorization from the transmitted orally. determines that there are significant Postal Service to manufacture, produce, (2) A copy of all instructions from the deficiencies in the product or in the or distribute a postage meter (postage provider to the testing laboratory with required supporting materials, then the evidencing system) under 39 CFR part respect to what is and what is not to be Postal Service will return the 501, Authorization to Manufacture and tested. submission to the provider without Distribute Postage Meters, the provider (3) Copies of all proprietary and reviewing it further. must obtain approval under these nonproprietary reports and 2. Letter of Intent product submission procedures. These recommendations generated during the procedures also apply to providers test process. The provider must submit a letter of requesting approval to manufacture, (4) Written full disclosure identifying intent to Manager, Postage Technology produce, or distribute a product under any contribution by the test laboratory Management (PTM), United States proposed 39 CFR part 502, Authority to to the design, development, or ongoing Postal Service, 1735 N. Lynn Street, Produce and Distribute Postage- maintenance of the system. Room 5011, Arlington, VA 22209–6050. Evidencing Systems that Generate The manager, PTM, will assign a point 1.2 Product Submission Procedures Information-Based Indicia (IBI) (65 FR of contact to coordinate the submission 58689). To submit a postage meter (postage and review process. The letter of intent The provider must select an evidencing system) for Postal Service must be dated and must include the independent testing laboratory, such as approval, the provider will complete the following: one accredited by the National Institutes following steps: (1) Name and address of all parties of Standards and Technology (NIST) (1) Submit a letter of intent (section under the National Voluntary involved in the proposal, with a name, 2). e-mail address, and telephone number Laboratory Accreditation Program (2) Complete and sign the of an official point of contact for each (NVLAP) to conduct the detailed nondisclosure agreements (section 3). party identified. In addition to the product review and testing required by (3) Submit the required provider, the parties listed must include these procedures. When the product documentation (section 4). those responsible for assembly, contains a postal security device (PSD) (4) Submit the postage evidencing distribution, product management, and or cryptographic module, the laboratory system for evaluation (section 5). must be a NVLAP-accredited (5) Enable USPS to review the hardware/firmware/software cryptographic modules testing provider’s system infrastructure (section development and testing, and other laboratory. 6). organizations involved (or expected to Technical documentation (section 4) (6) Place the product into limited be involved) with the product, and production systems (section 5) must distribution for field testing (section 7), including all suppliers of significant be provided to the selected test after completing any additional security product components. laboratory in sufficient detail to support testing that the Postal Service requires. (2) Provider’s business qualifications, testing. The testing laboratory will including proof of financial viability submit an executive summary 1.3 Additional Security Testing and proof of the provider’s ability to be containing the information referenced in The Postal Service may choose to use responsive and responsible. the Required Documentation table set resources under direct contract to the (3) System concept narrative, forth in paragraph 4.2, and the results of Postal Service to support the product including the provider’s infrastructure the product evaluation directly to the review for additional security testing. that will support the product. Postal Service. All supporting The activities of these resources are documentation, products, PSDs and independent of the testing laboratory (4) The target Postal Service market cryptographic modules, and other selected by the provider and must be segment the proposed system is materials used or generated during covered by nondisclosure agreements envisioned to serve. testing will be maintained by the testing (section 3). When there is a significant change to laboratory for the life of the test. At the any aspect or name of the product time of product approval, the manager, 1.4 Product Approval Process described in the letter of intent prior to Postage Technology Management When the field testing (section 7) is submission of the concept of operations (PTM), will determine the ongoing completed successfully, the Postal (section 4), the provider must revise the disposition of all supporting Service performs an administrative letter of intent and resubmit it.
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3. Nondisclosure Agreements considers that a given requirement is formatted for standard letter size (8.5″ × not applicable to the product, the 11″) paper, except for engineering When the Postal Service uses provider should note this in the drawings, which must be folded to letter resources under direct contract to the document submission. The table is not size. Where appropriate, documentation Postal Service to support the product meant to be an exhaustive list of all must be marked as ‘‘Confidential.’’ The review, the provider must establish a possible areas that need to be document recipient will determine the nondisclosure agreement with these documented to support the evaluation number of paper copies and the format resources. These nondisclosure of a postage meter (postage evidencing of electronic copies of each document at agreements may require extension to system). Ongoing advances and changes the time of submission based on current third-party suppliers or others identified in technology and new approaches to technology and review requirements. in the letter of intent (section 2). providing postage evidencing can add The manager, PTM, will acknowledge Providers are encouraged to share other components that must be the product concept as understood by copies of nondisclosure agreements considered. The provider should submit the Postal Service based on the concept provided by the Postal Service with all any additional information that it of operations (CONOPS) documentation. parties identified in the letter of intent, considers necessary or desirable to The provider should schedule a meeting to ensure that these parties will execute describe the product fully. The with PTM staff shortly after or the agreement if needed to support independent testing laboratory may simultaneously with the submission of Postal Service review of the product. determine the level of detail that must technical data to permit full discussion Failure to sign nondisclosure be submitted to meet its test and and understanding of the technical agreements, provided by the Postal evaluation requirements. The laboratory concepts being presented for evaluation. Service to support review activities, or the Postal Service may request The manager, PTM, will indicate Postal might adversely affect a product additional information if needed for a Service agreement or concerns relevant submission. Questions regarding this complete evaluation. to the concept, as appropriate. process should be directed to the Documentation must be submitted to manager, PTM. the independent laboratory and the 4.2 Required Documentation 4. Technical Documentation Postal Service as indicated in the The following table details all Required Documentation table. The documents that the provider must 4.1 Introduction laboratory will prepare an executive prepare. The table shows the The provider must submit the summary and submit it to the Postal submission requirements for the Postal materials listed in the Required Service when required. Documentation Service and for the independent testing Documentation table. If the provider must be in English and must be laboratory.
Submit to test lab- Document/section oratory? Postal service requirement
Required Documentation
Concept of Operations (CONOPS): System overview, including: • Concept overview and business model ...... Yes ...... Provider submits in full. Executive summary prepared by laboratory. • Postal security device (PSD) implementation, fea- tures, and components, including the digital sig- nature algorithm. • System life cycle overview. • Adherence to industry standards, such as FIPS PUB 140Ð1 or 140Ð2 (after May 25, 2002), as re- quired by Postal Service. System design details, including: Yes ...... Executive summary prepared by laboratory. Laboratory re- port on indicium barcode compliance with postal require- ments as given in the performance criteria. • PSD features and functions. • All aspects of key management. • Client (host) system features and functions. • Other components required for system use includ- ing, but not limited to, the proposed indicia design and label stock. System life cycle, including: Yes ...... Provider submits in full. Executive summary prepared by laboratory. • Manufacturing. • Postal Service certification of the system. • Production. • Distribution. • Meter licensing. • Initialization. • System authorization and installation. • Postage value download or resetting process. • System and support system audits. • Inspections. • Procedures for system withdrawal and replace- ment, including procedures for system malfunc- tions. • Procedures to destroy scrapped systems.
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Submit to test lab- Document/section oratory? Postal service requirement
Finance overview, including: Yes ...... Provider submits in full. Executive summary prepared by laboratory. • Customer account management (payment meth- ods, statements, and refunds). • Individual product finance account management (resetting or postage value download, refunds). • Daily account reconciliation (provider reconcili- ation, Postal Service detailed transaction report- ing). • Periodic summaries (monthly reconciliation, other reporting as required by the Postal Service). Interfaces, including: Yes ...... Provider submits in full. Executive summary prepared by laboratory. • Communications and message interfaces with the Postal Service infrastructure for resetting or post- age value downloads, refunds, inspections, prod- uct audits, and lost or stolen product procedures. • Communications and message interfaces with Postal Service financial functions for resetting or postage value downloads, daily account reconcili- ation, and refunds. • Communications and message interfaces with customer infrastructure for cryptographic key management, product audits, and inspections. • Message error detection and handling. Configuration management and detailed change control Yes ...... Executive summary prepared by laboratory. procedures for all components, including, but not lim- ited to: • Software. • Hardware and firmware. • Indicia. • Provider infrastructure. • Postal rate change procedures. • Interfaces. Physical security ...... Yes ...... Executive summary prepared by laboratory. Personnel/site security ...... Yes ...... Executive summary prepared by laboratory.
Software and Documentation
Detailed design ...... Yes ...... Executive summary prepared by laboratory. Executable code ...... Yes ...... On request. Source code ...... Yes ...... On request. Operations manuals ...... Yes ...... Executive summary prepared by laboratory. Communications interfaces ...... Yes ...... Executive summary prepared by laboratory. Maintenance manuals ...... Yes ...... Executive summary prepared by laboratory. Schematics ...... Yes ...... Executive summary prepared by laboratory. Product initialization procedures ...... Yes ...... Executive summary prepared by laboratory. Finite state machine models/diagrams ...... Yes ...... Executive summary prepared by laboratory. Block diagrams ...... Yes ...... Executive summary prepared by laboratory. Details of security features ...... Yes ...... Executive summary prepared by laboratory. Description of cryptographic operations, as required by FIPS Yes ...... Executive summary prepared by laboratory. PUB 140Ð1 or 140Ð2 (after May 25, 2002), Appendix A.
Test Plan
Postal Service requirements ...... Yes ...... Executive summary prepared by laboratory. FIPS PUB 140Ð1 or 140Ð2 (after May 25, 2002) require- Yes ...... Executive summary prepared by laboratory. ments. Physical security of provider’s Internet server, administrative Yes ...... Executive summary prepared by laboratory. site, and firewall. Security for remote administrative access and configuration Yes ...... Executive summary prepared by laboratory. control. Secure distribution or transmission of software and cryp- Yes ...... Executive summary prepared by laboratory. tographic keys. Test plan for system infrastructure: Yes ...... Executive summary proeared by laboratory. • Test parameters. • Infrastructure systems. • Interfaces. • Reporting requirements.
Test plan for limited distribution field tests: Yes ...... Executive summary prepared by laboratory. • Test parameters. • System quantities.
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Submit to test lab- Document/section oratory? Postal service requirement
• Geographic location. • Test participants. • Test duration. • Test milestones. • System recall plan
Provider Infrastructure Plan
Public key infrastructure ...... Yes ...... Executive summary prepared by laboratory. Procedures for enforcement of all provider-related, customer- Yes ...... Executive summary prepared by laboratory. related, and Postal Service-related processes, procedures, and interfaces discussed in CONOPS or required by Post- al Service regulations.
5. Product Submission and Testing Upon completing FIPS PUB 140–1 or new system stock, and system 140–2 certification, or equivalent, the installation, withdrawal, and 5.1 General Submission Requirements CMT laboratory must forward the replacement. The provider must submit complete following documentation directly to the (5) Irregularity reporting. production systems to the independent manager, PTM: (6) Lost and stolen reporting. testing laboratory for evaluation. The (1) A copy of the letter of (7) Financial transactions, including laboratory will determine how many recommendation for certification of the cash management, individual system systems are needed for a complete PSD or cryptographic module that the financial accounting, account evaluation. The provider must also laboratory submitted to the National reconciliation, and refund management. provide any equipment and Institute of Standards and Technology (8) Financial transaction reporting, consumables required to use the (NIST) of the United States of America. including daily summary reports, daily submitted systems in the manner (2) A copy of the certificate, if any, transaction reporting, and monthly described in the CONOPS. The provider issued by NIST for the PSD or summary reports. must also submit complete production cryptographic module. (9) System initialization. (10) Cryptographic key changes and systems, supporting equipment, and 6. System Infrastructure Testing and public key management. consumables directly to the Postal Provider System Security Testing (11) Postal rate table changes. Service, if requested. The Postal Service To achieve Postal Service approval of (12) Print quality assurance. may test these for compliance with a postage evidencing system, the (13) Device authorization. Postal Service regulations and processes provider must demonstrate that the (14) Postage evidencing system under section 6, System Infrastructure system satisfies all applicable postal examination and inspection, including Testing. regulations and reporting requirements physical and remote inspections. 5.2 Submission Requirements for and that it is compatible with Postal In addition to testing the system Products Containing a Postal Security Service mail processing functions and infrastructure, the Postal Service must Device or Cryptographic Module all other functions with which the be assured that the provider’s support product or its users interface. The tests systems and infrastructure are secure The NVLAP-accredited cryptographic must involve all entities in the proposed and not vulnerable to security breaches. modules testing (CMT) laboratory must architecture, including the postage This will require site reviews of evaluate all postal security devices evidencing system, the provider provider manufacturing, distribution, (PSDs) and cryptographic modules for infrastructure, the financial institution, and other support facilities, and reviews FIPS PUB 140–1 or 140–2 certification, and Postal Service infrastructure of network security and system access or equivalent, as authorized by the systems and interfaces. The tests may be controls. Postal Service. After May 25, 2002, FIPS conducted in a laboratory environment 7. Limited Distribution Field Test PUB 140–2 certification will be in accordance with the test plan for required. The Postal Service requires system infrastructure testing. Test and To achieve Postal Service approval of that the PSD or cryptographic module approval of system infrastructure a postage evidencing system, the receive FIPS PUB 140–1 or 140–2 functions must be completed before the provider must demonstrate that the certification as it is implemented. That postage evidencing system can be field system satisfies all applicable postal is, the PSD or cryptographic module and tested under section 7. The functions to processing and interface requirements the installed application must be be tested include, but are not limited to, in a real-world environment. This is considered as a whole in determining the following: achieved by placing a limited number of whether or not it receives FIPS (1) Meter licensing, including license systems in distribution for field testing. certification. The FIPS certification of application, license update, and license The Postal Service will determine the the PSD or cryptographic module is revocation. number of systems to be tested. The test dependent on the application. Since any (2) System status activity reporting. will be conducted in accordance with certification could be in question once (3) System distribution and the Postal Service-approved test plan for any noncertified or untested software is initialization, including system limited distribution field testing. The installed, the PSD or cryptographic authorization, system initialization, purpose of the limited-distribution field module must be certified as it will be customer authorization, and system test is to demonstrate the product’s implemented, and the accredited CMT maintenance. utility, security, audit and control, lab must reevaluate any changes that (4) Total system population inventory, functionality, and compatibility with would risk the certification. including leased and unleased systems, other systems, including mail entry,
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acceptance, and processing when in use. for approval are responsible for should be referred to David Fredrickson The field test will employ available obtaining all intellectual property or Monette Dawson, Office of the communications and will interface with licenses that may be required to General Counsel (202) 942–0890 or current operational systems to exercise distribute their product in commerce (202) 942–0870, Securities and all system functions. and to allow the Postal Service to Exchange Commission, 450 Fifth Street, The manager, PTM, will review the process mail bearing the indicia NW., Washington, DC 20549–0606. executive summary of the provider- produced by the product. By the Commission. proposed test plan for limited distribution field testing. The review Stanley F. Mires, Dated: April 29, 2002. will be based on, but not limited to, the Chief Counsel, Legislative. Jill M. Peterson, assessed revenue risk of the system, [FR Doc. 02–10782 Filed 4–30–02; 8:45 am] Assistant Secretary. system impact on Postal Service BILLING CODE 7710–12–P [FR Doc. 02–10931 Filed 4–29–02; 2:49 pm] operations, and requirements for Postal BILLING CODE 8010–01–U Service resources. Approval may be based in whole or in part on the SECURITIES AND EXCHANGE anticipated mail volume, mail COMMISSION SECURITIES AND EXCHANGE characteristics, and mail origination and [Release No. 34–45843; File No. S7–12–02] COMMISSION destination patterns of the proposed system. For systems designed for use by Draft Data Quality Assurance [Release No. 34–45817; File No. SR–CBOE– an individual meter user, product users Guidelines 2002–19] engaged in field testing must be AGENCY: approved by the Postal Service before Securities and Exchange Self-Regulatory Organizations; Notice they are allowed to participate in the Commission. of Filing and Immediate Effectiveness test. These participants must sign a ACTION: Notice of draft guidelines and of Proposed Rule Change by the nondisclosure/confidentiality agreement request for comments. Chicago Board Options Exchange, when reporting system security, audit Incorporated To Amend Its Rules SUMMARY: The Securities and Exchange and control issues, deficiencies, or Relating to the Limitation of Liability Commission has posted on its website at failures to the provider and the Postal for Index Licensors Service. This requirement does not www.sec.gov draft data quality apply to users of systems designed for assurance guidelines. The guidelines April 24, 2002. public use. describe procedures for ensuring and maximizing the quality of information Pursuant to Section 19(b)(1) of the 8. Postage Evidencing System Approval before it is disseminated to the public, Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 2 thereunder, Postal Service approval of the postage and the procedures by which an affected notice is hereby given that on April 19, meter (postage evidencing system) is person may obtain correction, where 2002, the Chicago Board Options based on the results of an administrative appropriate, of disseminated Exchange, Incorporated (‘‘CBOE’’ or review of the materials and test results information that does not comply with ‘‘Exchange’’) filed with the Securities generated during the product the guidelines. Comments will be and Exchange Commission submission and approval process. In considered in developing final data (‘‘Commission’’) the proposed rule preparation for the administrative quality assurance guidelines. change as described in Items I, II, and review, the provider must update all DATES: Comments must be received on III below, which Items have been documentation submitted in compliance or before June 3, 2002. prepared by the Exchange. The with these procedures to ensure ADDRESSES: You should send three Commission is publishing this notice to accuracy. The Postal Service will copies of your comments to Jonathan G. solicit comments on the proposed rule prepare a product approval letter Katz, Secretary, U.S. Securities and change from interested persons. detailing the conditions under which Exchange Commission, 450 Fifth Street, the specific product may be NW., Washington, DC 20549–0609. You I. Self-Regulatory Organization’s manufactured, distributed, and used. also may submit your comments Statement of the Terms of Substance of The provider must submit the following electronically to the following address: the Proposed Rule Change materials for the Postal Service [email protected]. All comment administrative review: letters should refer to File No. S7–12– The CBOE proposes to amend its rules (1) Materials prepared for the Postal 02; this file number should be included to make clear that its disclaimer Service by the independent testing in the subject line if you use electronic provisions for index licensors apply to laboratory. mail. Comment letters will be available any licensor that grants the Exchange a (2) The final certificate of evaluation for public inspection and copying at the license to use an index or portfolio in from the NVLAP laboratory, where Commission’s Public Reference Room, connection with the trading of options required. 450 Fifth Street, NW., Washington, DC on exchange-traded funds (‘‘ETFs’’). (3) The results of system 20549–0102. We will post electronically Below is the text of the proposed rule infrastructure testing. submitted comment letters on the change. Proposed new language is (4) The results of field testing of a Commission’s Internet Web site (http:// italicized. limited number of systems. (5) The results of any other Postal www.sec.gov). We do not edit personal * * * * * Service testing of the system. identifying information, such as names or electronic mail addresses, from Chicago Board Options Exchange, (6) The results of provider site Incorporated Rules security reviews. electronic submissions. Submit only information you wish to make publicly * * * * * 9. Intellectual Property available. Providers submitting postage FOR FURTHER INFORMATION CONTACT: 1 15 U.S.C. 78s(b)(1). evidencing systems to the Postal Service Questions about the draft guidelines 2 17 CFR 240.19b–4.
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Rule 6.15 Limitation on the Liability of the most significant aspects of such facilitating transactions in securities, Index Licensors for Options on Units statements. and to remove impediments to and perfect the mechanism of a free and (a) The term ‘‘index licensor’’ as used A. Self-Regulatory Organization’s open market and a national market in this rule refers to any entity that Statement of the Purpose of, and system. The Exchange believes that the grants the Exchange a license to use one Statutory Basis for, the Proposed Rule proposed rule change would eliminate or more indexes or portfolios in Change connection with the trading of options an apparent discrepancy in its rules on Units (as defined in Interpretation 1. Purpose between the provisions applicable to .06 to Rule 5.3). The CBOE proposes to add a new index options and those applicable to (b) No index licensor with respect to CBOE Rule 6.15 to CBOE’s rules to state options on ETFs. The Exchange also any index pertaining to Units liability disclaimers expressly for the believes that the proposed rule change underlying an option traded on the benefit of any index owner that grants would eliminate an impediment to the Exchange makes any warranty, express the Exchange a license to use an index listing and trading of options on ETFs. or implied, as to the results to be or portfolio in connection with the B. Self-Regulatory Organization’s obtained by any person or entity from trading of options on ETFs. ETFs may be Statement on Burden on Competition the use of such index, any opening, traded on CBOE pursuant to listing intra-day or closing value therefor, or standards in CBOE Rule 5.3, The Exchange does not believe that any data included therein or relating Interpretation and Policy .06. the proposed rule change will impose thereto, in connection with the trading CBOE Rule 24.14 currently states any burden on competition. of any option contract on Units based liability disclaimers for the benefit of C. Self-Regulatory Organization’s thereon or for any other purpose. The ‘‘reporting authorities’’ with respect to Statement on Comments on the index licensor shall obtain information indexes underlying options traded on Proposed Rule Change Received From for inclusion in, or for use in the the Exchange. Proposed new CBOE Rule Members, Participants, or Others calculation of, such index from sources 6.15 is substantively identical to CBOE it believes to be reliable, but the index Rule 24.14, except that it uses the term No written comments were solicited licensor does not guarantee the ‘‘index licensor’’ in place of the term or received with respect to the proposed accuracy or completeness of such index, ‘‘reporting authority.’’ 3 rule change. any opening, intra-day or closing value Like index options, options on ETFs III. Date of Effectiveness of the therefor, or any data included therein or are based on indexes and, indeed, index Proposed Rule Change and Timing for related thereto. The index licensor options and options on ETFs may be Commission Action hereby disclaims all warranties of based on the same underlying indexes. merchantability or fitness for a CBOE believes that the protections Because the proposed rule change (1) particular purpose or use with respect to afforded to an index licensor in does not significantly affect the any such index, any opening, intra-day connection with trading options on an protection of investors or the public or closing value therefor, any data index should also apply to an index interest; (2) does not impose any included therein or relating thereto, or licensor in connection with trading significant burden on competition; and any option contract on Units based options on ETFs. (3) does not become operative for 30 thereon. The index licensor shall have days from the date of filing, or such no liability for any damages, claims, 2. Statutory Basis shorter time as the Commission may losses (including any indirect or The Exchange believes that the designate if consistent with the consequential losses), expenses or proposed rule change is consistent with protection of investors and the public delays, whether direct or indirect, Section 6(b) of the Act 4 in general and interest, the proposed rule change has foreseen or unforeseen, suffered by any furthers the objectives of Section 6(b)(5) become effective pursuant to Section person arising out of any circumstance of the Act 5 in particular in that it is 19(b)(3)(A) of the Act 6 and Rule 19b– or occurrence relating to the person’s designed to prevent fraudulent and 4(f)(6) thereunder.7 use of such index, any opening, intra- manipulative acts and practices, to A proposed rule change filed under day or closing value therefor, any data promote just and equitable principles of Rule 19b–4(f)(6) normally does not included therein or relating thereto, or trade, to foster cooperation and become operative prior to 30 days after any option contract on Units based coordination with persons engaged in the date of filing. However, pursuant to thereon, or arising out of any errors or Rule 19b–4(f)(6)(iii),8 the Commission delays in calculating or disseminating 3 The term ‘‘reporting authority’’ is defined in may designate a shorter time if such such index. CBOE Rule 24.1(h) as, with respect to a particular action is consistent with the protection index, ‘‘the institution or reporting service * * * * * designated by the Exchange as the official source for of investors and public interest. The calculating the level of the index from the reported Exchange requests that the Commission II. Self-Regulatory Organization’s prices of the underlying securities that are the basis waive the 30-day operative date and Statement of the Purpose of, and of the index and reporting such level.’’ In practice, seeks to have the proposed rule change the Exchange designates the owner/licensor of an Statutory Basis for, the Proposed Rule become operative as of April 19, 2002, Change index as the reporting authority for that index, and the owner/licensor therefore receives the benefit of in order to immediately afford In its filing with the Commission, the the disclaimers in CBOE Rule 24.14. The CBOE protection for index licensors from Exchange included statements believes that the concept of a ‘‘reporting authority’’ liability. In addition, under Rule 19b– is not relevant for options on an ETF, because The concerning the purpose of and basis for Options Clearing Corporation does not directly use 4(f)(6)(iii), the Exchange is required to the proposed rule change and discussed the values of the underlying index for purposes of provide the Commission with written any comments it received on the settlement and margin calculations. Instead, the notice of its intent to file the proposed proposed rule change. The text of these values of the ETF itself are used for these purposes. rule change at least five business days Proposed CBOE Rule 6.15 therefore uses the term statements may be examined at the ‘‘index licensor’’ in place of the term ‘‘reporting places specified in Item IV below. The authority’’ used in CBOE Rule 24.14. 6 15 U.S.C. 78s(b)(3)(A). Exchange has prepared summaries, set 4 15 U.S.C. 78f(b). 7 17 CFR 240.19b–4(f)(6). forth in Sections A, B, and C below, of 5 15 U.S.C. 78f(b)(5). 8 17 CFR 240.19b–4(f)(6)(iii).
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prior to the filing date or such shorter SECURITIES AND EXCHANGE places specified in Item IV below. The time as designated by the Commission.9 COMMISSION CHX has prepared summaries, set forth in Sections A, B and C below, of the The Commission, consistent with the [Release No. 34–45819; File No. SR–CHX– protection of investors and the public 2002–11] most significant aspects of such interest, has waived the thirty-day statements. operative date requirements for this Self-Regulatory Organizations; Notice A. Self-Regulatory Organization’s proposed rule change, and has of Filing and Immediate Effectiveness Statement of the Purpose of, and determined to designate the proposed of Proposed Rule Change by the Statutory Basis for, the Proposed Rule Chicago Stock Exchange, Incorporated rule change operative as of April 19, Change 10 To Extend Pilot Rules for Decimals 2002. At any time within 60 days of 1. Purpose the filing of the proposed rule change, April 24, 2002. the Commission may summarily Pursuant to Section 19(b)(1) of the On August 24, 2000, the Commission abrogate such rule change if it appears Securities Exchange Act of 1934 approved, on a pilot basis through February 28, 2001, changes proposed by to the Commission that such action is (‘‘Act’’),1 and Rule 19b–4 thereunder,2 the Exchange to amend certain CHX necessary or appropriate in the public notice is hereby given that on April 12, 2002, the Chicago Stock Exchange, rules that would be impacted by the interest, for the protection of investors, securities industry transition to a or otherwise in furtherance of the Incorporated (‘‘CHX’’ or ‘‘Exchange’’) filed with the Securities and Exchange decimal pricing environment, including purposes of the Act. 6 Commission (‘‘Commission’’) the the Exchange’s crossing rule. By a IV. Solicitation of Comments proposed rule change as described in series of subsequent submissions, the 7 Items I, II and II below, which Items pilots were extended four times. The Interested persons are invited to have been prepared by the CHX. The Exchange now requests an extension of submit written data, views and Exchange filed the proposal pursuant to the current pilots through September 30, arguments concerning the foregoing, Section 19(b)(3)(A) of the Act,3 and Rule 2002. The CHX does not propose to including whether the proposed rule 19b–4(f)(6) 4 thereunder, which renders make any substantive or typographical change is consistent with the Act. the proposal effective upon filing with changes to the pilot. Persons making written submissions the Commission.5 The Commission is 2. Statutory Basis should file six copies thereof with the publishing this notice to solicit Secretary, Securities and Exchange comments on the proposed rule change The CHX believes the proposal is Commission, 450 Fifth Street, NW., from interested persons. consistent with the requirements of the Act and the rules and regulations Washington, DC 20549–0609. Copies of I. Self-Regulatory Organization’s thereunder that are applicable to a the submission, all subsequent Statement of the Terms of Substance of national securities exchange, and, in amendments, all written statements the Proposed Rule Change particular, with the requirements of with respect to the proposed rule Section 6(b).8 The CHX believes the change that are filed with the The Exchange proposes to extend through September 30, 2002, the pilot proposal is consistent with Section Commission, and all written rules amending certain CHX rules that 6(b)(5) of the Act 9 in that it is designed communications relating to the were impacted by the securities proposed rule change between the industry transition to a decimal pricing 6 These changes were proposed in two separate Commission and any person, other than environment. The two pilots containing CHX submissions, the second of which dealt solely those that may be withheld from the with decimal-related changes to the Exchange’s these rules were due to expire on April crossing rule, Article XX, Rule 23. See Securities public in accordance with the 15, 2002. The CHX does not propose Exchange Act Release No. 43204 (August 24, 2000), provisions of 5 U.S.C. 552, will be any substantive or typographical 65 FR 53065 (August 31, 2000) (SR–CHX–2000–22) available for inspection and copying in changes to the pilot; the only change is (approving changes to various CHX rules on a pilot basis (‘‘Omnibus Decimal Pilot’’)); see also the Commission’s Public Reference an extension of each pilot’s expiration Securities Exchange Act Release No. 43203 (August Room. Copies of such filing will also be date through September 30, 2002. The 24, 2000), 65 FR 53067 (August 31, 2000) (SR– available for inspection and copying at text of the proposed rule change is CHX–2000–13) (approving changes to the CHX the principal office of the CBOE. All available at the Commission and at the crossing rule on a pilot basis (‘‘Crossing Rule Decimal Pilot’’)). submissions should refer to File No. CHX. 7 See Securities Exchange Act Release Nos. 43974 SR–CBOE–2002–19 and should be II. Self-Regulatory Organization’s (February 16, 2001), 66 FR 11621 (February 26, submitted by May 22, 2002. 2001) (SR–CHX–2001–03) (extending Omnibus Statement of the Purpose of, and Decimal Pilot through July 9, 2001); 44488 (June 28, For the Commission, by the Division of Statutory Basis for, the Proposed Rule 2001), 66 FR 35684 (July 6, 2001) (SR–CHX–2001– Market Regulation, pursuant to delegated Change 13) (extending Omnibus Decimal Pilot through authority.11 November 5, 2001); 45059 (November 15, 2001), 66 In its filing with the Commission, the FR 58543 (November 21, 2001) (SR–CHX–2001–20) Margaret H. McFarland, CHX included statements concerning (extending Omnibus Decimal Pilot through January Deputy Secretary. the purpose of and basis for the 14, 2002); and 45482 (February 27, 2002), 67 FR 10243 (March 3, 2002) (SR–CHX–2002–01) [FR Doc. 02–10715 Filed 4–30–02; 8:45 am] proposed rule change and discussed any (extending Omnibus Decimal Pilot through April BILLING CODE 8010–01–P comments it received regarding the 15, 2002); see also, Securities Exchange Act Release proposed rule change. The text of these Nos. 44000 (February 23, 2001), 66 FR 13361 statements may be examined at the (March 5, 2001) (SR–CHX–00–27) (extending 9 The CBOE provided the Commission with Crossing Rule Decimal Pilot through July 9, 2001); notice of intent to file at least five days prior to 45010 (November 1, 2001), 66 FR 56585 (November 1 15 U.S.C. 78s(b)(1). 8, 2001) (SR–CHX–2001–22) (extending Crossing filing the proposed rule change. 2 17 CFR 240.19b–4. Rule Decimal Pilot through January 14, 2002); and 10 For the purposes only of accelerating the 3 15 U.S.C. 78s(b)(3)(A). 45481 (February 27, 2002), 67 FR 10244 (March 3, operative date of this proposal, the Commission has 4 17 CFR 240.19b–4(f)(6). 2002) (SR–CHX–2002–03) (extending Crossing Rule considered the proposed rules impact on efficiency, 5 The Exchange requested, and the Commission Decimal Pilot through April 15, 2002). competition, and capital formation. 15 U.S.C. 78c(f). agreed, to waive the 5-day prefiling notice 8 15 U.S.C. 78(f)(b). 11 17 CFR 200.30–3(a)(12). requirement. 9 15 U.S.C. 78f(b)(5).
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to promote just and equitable principles IV. Solicitation of Comments proposed rule change from interested of trade, to remove impediments, and to persons. perfect the mechanism of, a free and Interested persons are invited to I. Self-Regulatory Organization’s open market and a national market submit written data, views and arguments concerning the foregoing, Statement of the Terms of Substance of system, and, in general, to protect the Proposed Rule Change investors and the public interest. including whether the proposal is consistent with the Act. Persons making The Exchange is proposing to amend B. Self-Regulatory Organization’s written submissions should file six the definition of the term ‘‘obvious Statement on Burden on Competition copies thereof with the Secretary, error’’ contained in ISE Rule 720 for The Exchange does not believe that Securities and Exchange Commission, options with a theoretical price of less the proposed rule change will impose 450 Fifth Street, NW., Washington DC than $3.00. With respect to such any inappropriate burden on 20549–0609. Copies of the submission, options, an obvious error will be competition. all subsequent amendments, all written deemed to have occurred when the statements with respect to the proposed execution price of a transaction is C. Self-Regulatory Organization’s rule change that are filed with the higher or lower than the theoretical Statement on Comments On the Commission, and all written price for the series by an amount of Proposed Rule Change Received From communications relating to the $0.25 or more. Proposed new language Members, Participants or Others proposed rule change between the is italicized; proposed deletions are in No written comments were either Commission and any person, other than brackets. solicited or received. those that may be withheld from the * * * * * public in accordance with the III. Date of Effectiveness of the Rule 720. Obvious Errors Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be The Exchange shall either bust a Commission Action available for inspection and copying in the Commission’s Public Reference transaction or adjust the execution price Because the foregoing proposed rule Room Copies of such filing will also be of a transaction that results from an change does not: available for inspection and copying at Obvious Error as provided in this Rule. (i) Significantly affect the protection the principal office of the CHX. All (a) Definition of Obvious Error. For of investors or the public interest; submissions should refer to File No. purposes of this Rule only, an Obvious (ii) Impose any significant burden on SR–CHX–2002–11 and should be Error will be deemed to have occurred competition; and submitted by May 22, 2002. when: (iii) Because operative for 30 days (1) if the Theoretical Price of the from the date on which it was filed, or For the Commission, by the division of option is less than $3.00, the execution Market Regulation, pursuant to delegated such shorter time as the Commission price of a transaction is higher or lower authority.13 may designate, it has become effective than the Theoretical Price for the series pursuant to section 19(b)(3)(A) of the Margaret H. McFarland, by an amount of 25 cents or more; or Act 10 and Rule 19b–4(f)(6) Deputy Secretary. (2) if the Theoretical Price of the thereunder.11 At any time within 60 [FR Doc. 02–10714 Filed 4–30–02; 8:45 am] option is $3.00 or higher: days of the filing of the proposed rule BILLING CODE 8010–01–M (i) during regular market conditions change, the Commission may summarily (including rotations), the execution abrogate such rule change if it appears price of a transaction is higher or lower to the Commission that such action is SECURITIES AND EXCHANGE than the Theoretical Price for the series necessary or appropriate in the public COMMISSION by an amount equal to at least two (2) interest, for the protection of investors, times the maximum bid/ask spread or otherwise in furtherance of the [Release No. 34–45811; File No. SR–ISE– allowed for the option, so long as such purposes of the Act. 2001–34] amount is 50 cents or more; or The Exchange has requested that the (ii)[(2)] during fast market conditions Commission waive the 5-day pre-filing Self Regulatory Organizations; Notice (i.e., the Exchange has declared a fast requirement and accelerate the of Filing of Proposed Rule Change by market status for the option in operative date of the proposed rule the International Securities Exchange question), the execution price of a change. The Commission finds good LLC Amending Its Obvious Error Rule transaction is higher or lower than the cause to waive the 5-day pre-filing Theoretical Price for the series by an requirement and to designate for April 24, 2002. amount equal to at least three (3) times proposal to become operative Pursuant to Section 19(b)(1) of the the maximum bid/ask spread allowed immediately because such designation Securities Exchange Act of 1934 for the option, so long as such amount is consistent and waiver of the 5-day (‘‘Act’’),1 and Rule 19b–4 thereunder,2 is 50 cents or more. pre-filing requirement will allow the notice is hereby given that on November * * * * * pilot to continue uninterrupted through 19, 2001, the International Securities September 30, 2002. For these reasons, Exchange LLC (‘‘ISE’’ or ‘‘Exchange’’) II. Self-Regulatory Organization’s the Commission finds good cause to filed with the Securities and Exchange Statement of the Purpose of, and designate that the proposal in both Commission (‘‘Commission’’) the Statutory Basis for, the Proposed Rule effective and operative upon filing with proposed rule change as described in Change the Commission.12 Items I, II, and III below, which Items In its filing with the Commission, the have been prepared by the Exchange. Exchange included statements 10 U.S.C. 78s(b)(3)(A). The Commission is publishing this concerning the purpose of, and basis for, 11 17 CFR 240.19b–4(f)(6). notice to solicit comments on the the proposed rule change and discussed 12 For purposes only of accelerating the operative any comments it received on the date of this proposal, the Commission has considered the proposed rule’s impact on 13 17 CFR 200.30–3(a)(12). proposed rule change. The text of these efficiency, competition, and capital formation. 15 1 15 U.S.C. 78s(b)(1). statements may be examined at the U.S.C. 78c(f). 2 17 CFR 240.19b–4. places specified in Item IV below. The
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Exchange has prepared summaries, set system, and, in general, to protect For the Commission, by the Division of forth in Sections A, B, and C below, of investors and the public interest. Market Regulation, pursuant to delegated the most significant aspects of such authority.5 B. Self-Regulatory Organization’s statements. Statement on Burden on Competition Margaret H. McFarland, A. Self-Regulatory Organization’s Deputy Secretary. Statement of the Purpose of, and The Exchange does not believe that [FR Doc. 02–10713 Filed 4–30–02; 8:45 am] the proposed rule change will impose Statutory Basis for, the Proposed Rule BILLING CODE 8010–01–P Change any burden on competition that is not necessary or appropriate in furtherance 1. Purpose of the purposes of the Act. SECURITIES AND EXCHANGE ISE Rule 720 gives the Exchange C. Self-Regulatory Organization’s COMMISSION authority to bust or adjust trades that Statement on Comments on the result from an obvious error. The rule Proposed Rule Change Received From [Release No. 34–45818; File No. SR–NASD– contains objective standards regarding Members, Participants, or Others 2002–15] the definition of an ‘‘obvious error,’’ the circumstances under which a trade The Exchange did not solicit or Self-Regulatory Organizations; Notice should be adjusted or busted, and the receive written comments on the of Filing of Proposed Rule Change by price to which a trade should be proposed rule change. the National Association of Securities adjusted if adjustment is appropriate. III. Date of Effectiveness of the Dealers, Inc. Relating to Situations in The Rule currently defines an obvious Proposed Rule Change and Timing for Which a Suspended, Terminated, or error based upon the market conditions Commission Action Otherwise Defunct Member or and the difference between the Associated Person Fails To Answer or execution price and the ‘‘theoretical Within 35 days of the date of Participate in an Arbitration price’’ of the options series. To be an publication of this notice in the Federal Proceeding obvious error, the difference in Register or within such longer period (i) execution and theoretical price must be as the Commission may designate up to April 24, 2002. the greater of $0.50 or two times the 90 days of such date if it finds such Pursuant to Section 19(b)(1) of the allowable spread in regular market longer period to be appropriate and Securities Exchange Act of 1934 conditions (three times the allowable publishes its reasons for so finding or (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 spread in ‘‘fast market’’ conditions). (ii) as to which the Exchange consents, notice is hereby given that on February The current rule does not directly the Commission will: 1, 2002, the National Association of consider the price at which the (A) by order approve such proposed Securities Dealers, Inc. (‘‘NASD’’ or particular options series is trading in rule change, or ‘‘Association’’), through its wholly determining whether there has been an (B) institute proceedings to determine owned subsidiary, NASD Dispute obvious error (although the allowable whether the proposed rule change Resolution, Inc. (‘‘NASD Dispute spread does increase as an option’s should be disapproved. Resolution’’), filed with the Securities price increases). The ISE represents that and Exchange Commission in administering the Rule, it has found IV. Solicitation of Comments (‘‘Commission’’) the proposed rule that (1) the price of an option is a change as described in Items I, II, and significant factor in determining when Interested persons are invited to submit written data, views, and III below, which Items have been there is an obvious error; and (2) a prepared by NASD Dispute Resolution. pricing error in an options series trading arguments concerning the foregoing, including whether the proposed rule The Commission is publishing this at less than $3.00 can often be notice to solicit comments on the significant even if it does not meet the change is consistent with the Act. Persons making written submissions proposed rule change from interested current $0.50 minimum requirement. persons. The Exchange thus proposes that the should file six copies thereof with the standard for determining the existence Secretary, Securities and Exchange I. Self-Regulatory Organization’s of an obvious error for options series Commission, 450 Fifth Street, NW, Statement of the Terms of Substance of trading at less than $3.00 be whether the Washington, DC 20549–0609. Copies of the Proposed Rule Change difference between the execution price the submission, all subsequent and the theoretical price is at least amendments, all written statements NASD Dispute Resolution is $0.25. with respect to the proposed rule proposing to amend Rule 10314 of the change that are filed with the NASD Code of Arbitration Procedure 2. Statutory Basis Commission, and all written (‘‘Code’’) to provide default procedures The Exchange believes that the communications relating to the for situations in which a suspended, proposed rule change is consistent with proposed rule change between the terminated, or otherwise defunct Section 6(b) of the Act 3 in general, and Commission and any person, other than member or associated person fails to furthers the objectives of Section those that may be withheld from the answer or participate in an arbitration 6(b)(5) 4 in particular, in that it is public in accordance with the proceeding, and the claimant designed to prevent fraudulent and provisions of 5 U.S.C. 552, will be nevertheless elects to pursue arbitration. manipulative acts and practices, to available for inspection and copying at Below is the text of the proposed rule promote just and equitable principles of the Commission’s Public Reference change. Proposed new language is in trade, to remove impediments to and Room. Copies of such filing will also be italics. perfect the mechanism for a free and available for inspection and copying at * * * * * open market and a national market the principal office of the Exchange. All submissions should refer to File No. 5 17 CFR 200.30–3(a)(12). 3 15 U.S.C. 78f(b). SR–ISE–2001–34 and should be 1 15 U.S.C. 78s(b)(1). 4 15 U.S.C. 78f(b)(5). submitted by May 22, 2002. 2 17 CFR 240.19b–4.
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Code of Arbitration Procedure (5) The Claimant(s) may not amend proceedings in the securities industry the claim to increase the relief requested arbitration forums, and making several 10314. Initiation of Proceedings after the Director has notified the parties recommendations for improvements.3 Except as otherwise provided herein, that the claim will proceed under The GAO Report observed that most of an arbitration proceeding under this default procedures. the unpaid awards resulted from broker/ Code shall be instituted as follows: (6) An arbitrator may not make an dealers that were no longer in business.4 (a) Statement of Claim award based solely on the non- In a letter to the GAO on May 25, 2000, Unchanged. appearance of a party. The party who the NASD committed to undertake (b) Answer—Defenses, Counterclaims, appears must present a sufficient basis several initiatives to address the issue of and/or Cross-Claims to support the making of an award in unpaid awards.5 The NASD Dispute (1) Unchanged. Resolution believes that the proposed (2) (A)–(B) Unchanged. that party’s favor. The arbitrator may (C) A Respondent, Responding not award damages in an amount rule change will complete its Claimant, Cross-Claimant, Cross- greater than the damages requested in implementation of all initiatives. The GAO initiatives are listed below Respondent, or Third-Party Respondent the Statement of Claim, and may not with a description as to the actions who fails to file an Answer within 45 award any other relief that was not already taken. The last item is the calendar days from receipt of service of requested in the Statement of Claim. proposed rule change. a Claim, unless the time to answer has (7) If the Respondent files an Answer after the Director has notified the parties Require member firms and associated been extended pursuant to persons to notify NASD Dispute subparagraph (5), below, may, in the that the claim will proceed under default procedures but before an award Resolution when they have satisfied an discretion of the arbitrators, be barred award. from presenting any matter, arguments, has been rendered, the proceedings under this paragraph shall be NASD Dispute Resolution issued or defenses at the hearing. Such a party Notice to Members 00–55, effective may also be subject to default terminated and the case will proceed under the regular procedures. September 18, 2000, which requires procedures as provided in paragraph (e) members to certify that they have paid * * * * * below. or otherwise complied with an award (3)–(4) Unchanged. II. Self-Regulatory Organization’s against them or their associated persons (5) Unchanged. within 30 days after service of the (c)–(d) Statement of the Purpose of, and Unchanged. Statutory Basis for, the Proposed Rule award. Beginning September 18, 2000, (e) Default Procedures Change NASD Dispute Resolution has been (1) A Respondent, Cross-Respondent, In its filing with the Commission, sending two new letters when awards or Third-Party Respondent that fails to NASD Dispute Resolution included are served. One letter is sent only to file an Answer within 45 calendar days statements concerning the purpose of members and associated persons against whom an award has been rendered. It from receipt of service of a Claim, and basis for the proposed rule change requires members to inform NASD unless the time to answer has been and discussed any comments it received Dispute Resolution whether they or extended pursuant to paragraph (b)(5), on the proposed rule change. The text their associated persons have paid may be subject to default procedures, as of these statements may be examined at awards against them. Associated provided in this paragraph, if it is: the places specified in Item IV below. persons who have changed members (A) a member whose membership has NASD Dispute Resolution has prepared since the complaint was filed are been terminated, suspended, canceled, summaries, set forth in Sections A, B, required to notify NASD Dispute or revoked; and C below, of the most significant Resolution directly.6 NASD Dispute (B) a member that has been expelled aspects of such statements. from the NASD; Resolution begins the suspension (C) a member that is otherwise A. Self-Regulatory Organization’s process if the 30-day period has passed defunct; or Statement of the Purpose of, and and there has been no notice that the (D) an associated person whose Statutory Basis for, the Proposed Rule member or associated person has paid registration is terminated, revoked, or Change the award. suspended. Request in the award service letter (2) If all Claimants elect to use these 1. Purpose that claimants notify NASD Dispute default procedures, the Claimant(s) NASD Dispute Resolution proposes to Resolution if the award has not been shall notify the Director in writing and amend Rule 10314 of the Code to paid within an established number of shall send a copy of such notification to provide default procedures for days of service. all other parties at the same time and situations in which a suspended, Notice to Members 00–55 also invites in the same manner as the notification terminated, or otherwise defunct claimants to inform NASD Dispute was sent to the Director. member or associated person (3) If the case meets the requirements (collectively referred to in this rule 3 The report is entitled, ‘‘Securities Arbitration: for proceeding under default filing as ‘‘defunct’’) fails to answer or Actions Needed to Address Problem of Unpaid Awards,’’ Report No. GAO/GGD–00–115 (June 15, procedures, the Director shall notify all participate in an arbitration proceeding, 2000) (‘‘GAO Report’’). The report is available parties. and the claimant nevertheless elects to online at www.gao.gov. (4) The Director shall appoint a single pursue arbitration. The procedures are 4 See the GAO Report at page 8. arbitrator pursuant to Rule 10308 to designed to make it easier for claimants 5 The letter is reprinted in the GAO Report at page consider the Statement of Claim and to obtain an award against a defunct 66. 6 The respondent may also provide a justification other documents presented by the party, which award can then be for non-payment: for example, that the parties have Claimant(s). The arbitrator may request enforced in court. agreed to installment payments; that the award has additional information from the The United States General Accounting been modified or vacated by a court; that a motion Claimant(s) before rendering an award. Office (‘‘GAO’’) issued a report in June to vacate or modify the award has been timely filed with a court of competent jurisdiction and such No hearing shall be held, and the 2000 expressing concern over the motion has not been denied by that court; that there default award shall have no effect on number of unpaid arbitration awards is a pending bankruptcy petition; or that the award any non-defaulting party. issued in connection with arbitration has been discharged in bankruptcy.
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Resolution if their awards against respondents while the rest of the initial 2 Statutory Basis members or associated persons have not arbitration proceeds against any NASD Dispute Resolution believes 8 been paid, so that the non-summary remaining respondents. that the proposed rule change is suspension process can begin. The If the claimant opts to use default consistent with Section 15A(b)(6) of the second letter implemented on procedures, the case will proceed with Act 9 which requires, among other September 18, 2000 is sent to all parties a single arbitrator without a hearing. things, that the Association’s rules be with service of their award. It restates Under the default procedures, the designed to prevent fraudulent and the requirement to pay awards within arbitrator will make an award based manipulative acts and practices, to 30 days of service, and requests parties upon the Statement of Claim and any promote just and equitable principles of who have prevailed against a member or other material submitted by the trade, and, in general, to protect associated person to inform NASD claimant. The arbitrator may request investors and the public interest. NASD Dispute Resolution if their award has additional information from the Dispute Resolution believes that the not been paid. claimant before rendering an award. In proposed rule change will protect Propose to the NASD Board and to the keeping with the streamlined nature of investors and the public interest by Commission a rule amendment that a the procedures, neither the claimant nor making it faster and less expensive for firm that has been terminated, the single arbitrator will have the option investors and other claimants to obtain suspended, or barred from the NASD, or to ask that two additional arbitrators be awards against defunct members and that is otherwise defunct, cannot appointed to decide the case (as is associated persons, which awards can sometimes done in other single- enforce a predispute arbitration then be enforced in court and through arbitrator cases). agreement against a customer in the the NASD suspension process, while NASD forum. The procedures have several provisions to safeguard the integrity of containing several provisions to The Boards of NASD Dispute safeguard the integrity of the process Resolution and the NASD approved this the process and discourage abuses: • and discourage abuses. proposal at their meetings on December The claimant may not amend the 6 and 7, 2000. The Commission claim to increase the relief requested B. Self-Regulatory Organization’s approved the rule change on April 6, after the staff has notified the parties Statement on Burden on Competition 2001.7 Notice to Members 01–29, that the claim will proceed under NASD Dispute Resolution does not announcing the Commission’s approval, default procedures. believe that the proposed rule change • An arbitrator may not make an was published on May 10, 2001, and the will impose any burden on competition award based solely on the non- rule change was effective for all claims that is not necessary or appropriate in appearance of a party. The party who served on or after June 11, 2001. furtherance of the purposes of the Act. Advise claimants in writing of the appears must present a sufficient basis status of a firm or associated person to support the making of an award in C. Self-Regulatory Organization’s that party’s favor. Statement on Comments on the (e.g., terminated, out of business, • bankrupt) so they can evaluate whether The arbitrator may not award Proposed Rule Change Received From to continue with arbitration. damages in an amount greater than the Members, Participants or Others This procedure was implemented on damages requested in the Statement of No written comments were solicited June 11, 2001, in connection with the Claim, and may not award any other or received with respect to the proposed previous item. relief that was not requested in the rule change. Propose to the NASD Board and to the Statement of Claim. Commission a rule amendment to The proposed rule provides, however, III. Date of Effectiveness of the provide streamlined default proceedings that the default award will have no Proposed Rule Change and Timing for where the terminated or defunct effect on the non-defaulting parties. The Commission Action member or associated person does not proposed rule would apply to all types Within 35 days of the date of answer or appear, but the claimant of claimants, whether they are publication of this notice in the Federal affirmatively elects to pursue customers, associated persons, or Register or within such longer period (i) arbitration. member firm claimants, that are as the Commission may designate up to This is the present proposed rule bringing a claim against a suspended or 90 days of such date if it finds such change. It would provide an expedited terminated member or associated longer period to be appropriate and default procedure for certain cases in person. In line with the GAO’s publishes its reasons for so finding or which a respondent is an associated recommendations, the proposal is (ii) as to which the NASD Dispute person whose registration is terminated, designed to make it easier to obtain an Resolution consents, the Commission revoked, or suspended; a member whose award against any defunct member or will: membership has been terminated, associated person. (A) by order approve such proposed suspended, canceled, or revoked; a Finally, if a respondent thought to be rule change, or member that has been expelled from the defunct belatedly files an answer or (B) institute proceedings to determine NASD; or a member that is otherwise otherwise begins to participate after the whether the proposed rule change defunct. If a defunct respondent fails to staff has notified the parties that the should be disapproved. claim will proceed under default answer the claim in a timely manner, IV. Solicitation of Comments the claimant may elect to proceed under procedures but before an award has optional default procedures as to that been rendered, the default procedures Interested persons are invited to respondent. If there are several will be suspended, and the case will submit written data, views and claimants, all must agree to use default proceed under the regular procedures. arguments concerning the foregoing, procedures. The default procedures may including whether the proposed rule 8 be used against one or more defunct If a case is to be bifurcated and handled under change is consistent with the Act. two different procedures, regular and default, each Persons making written submissions proceeding will be assigned a separate case number 7 Securities Exchange Act Release No. 44158 to avoid confusion. Proposed NASD Rule 10314(e) should file six copies thereof with the (April 6, 2001), 66 FR 19267 (April 13, 2001) (File provides that the default award will have no effect No. SR–NASD–01–08). on any non-defaulting party. 9 15 U.S.C. 78o–3(b)(6).
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Secretary, Securities and Exchange I. Self-Regulatory Organization’s A. Self-Regulatory Organization’s Commission, 450 Fifth Street, NW., Statement of the Terms of Substance of Statement of the Purpose of, and Washington, DC 20549–0609. Copies of the Proposed Rule Change Statutory Basis for, the Proposed Rule Change the submission, all subsequent The NASD proposes to: (1) establish amendments, all written statements a minimum life of five seconds for 1. Purpose with respect to the proposed rule Directed Orders in Nasdaq’s future change that are filed with the Order Display and Collector Facility As part of its ongoing analysis of its Commission, and all written (‘‘NNMS’’ or ‘‘SuperMontage’’), and (2) current and future trading systems, communications relating to the reduce from ten seconds to five seconds Nasdaq continuously reviews system proposed rule change between the the minimum time period before an functionality and rules with a view to Commission and any person, other than order entered into Nasdaq’s SelectNet constant improvement. As a result of those that may be withheld from the system may be cancelled by the entering this review, and in consultation with public in accordance with the party. If approved, Nasdaq will industry professionals, Nasdaq has provisions of 5 U.S.C. 552, will be implement both rule changes on July 1, determined to: (1) establish a five- available for inspection and copying in 2002. second minimum life for Directed the Commission’s Public Reference Proposed new language is italicized; Orders in SuperMontage, and (2) reduce Room. Copies of such filing will also be proposed deletions are in [brackets]. from ten seconds to five seconds the available for inspection and copying at minimum time period before an order * * * * * the principal office of the NASD. All entered into SelectNet may be cancelled submissions should refer to File No. 4706. Order Entry Parameters by the entering party. Because the SR–NASD–2002–15 and should be (a) No Change. SuperMontage Directed Order Process submitted by May 22, 2002. will utilize an enhanced version of the (b) Directed Orders: A participant may current SelectNet system, Nasdaq is For the Commission, by the Division of enter a Directed Order into the NNMS jointly proposing these rule changes Market Regulation, pursuant to delegated to access a specific Attributable Quote/ because it believes that the rules must authority.10 Order displayed in the Nasdaq become effective simultaneously to Margaret H. McFarland, Quotation Montage, subject to the ensure uniformity of minimum order following conditions and requirements: Deputy Secretary. life parameters across both systems (1) through (3) No Change. [FR Doc. 02–10716 Filed 4–30–02; 8:45 am] during the phase-in period.3 BILLING CODE 8010–01–P (4) a Directed Order entered into the system may not be cancelled until a a. Creation of Five-Second Minimum minimum of five seconds has elapsed Life for Directed Orders in SuperMontage SECURITIES AND EXCHANGE after the time of entry. This five second COMMISSION time period shall be measured by Directed Orders are orders at any NNMS. price that have been specifically [Release No. 34–45813; File No. SR–NASD– * * * * * dispatched to a particular market 2002–55] participant by the sender through the 4720. SelectNet Service SuperMontage’s Directed Order Process. Self-Regulatory Organizations; Notice (a) Cancellation of a SelectNet Order Recipients of Directed Orders have an of Filing of Proposed Rule Change by No member shall cancel or attempt to option to elect to receive such orders as the National Association of Securities cancel an order, whether preferenced to either liability orders with which they Dealers, Inc. Relating to the Minimum a specific market maker or electronic must interact consistent with the Life of Directed Orders in Nasdaq’s communications network, or broadcast Commission’s Firm Quote Rule,4 or as SuperMontage System and the to all available members, until a non-liability orders that create no Minimum Life of SelectNet Orders minimum time period of [ten] five obligation to respond by the recipient seconds has expired after the order to be under the Commission’s Firm Quote April 24, 2002. canceled was entered. Such [ten] five Rule, and instead may serve as the basis Pursuant to Section 19(b)(1) of the second time period, shall be measured for negotiating a trade. Securities Exchange Act of 1934 by the Nasdaq processing system The minimum life of a Directed Order (‘‘Act’’)1 and Rule 19b–4 thereunder,2 processing the SelectNet order. is the shortest period of time that a notice is hereby given that on April 18, (b) through (c) No Change. Directed Order must remain active and 2002, the National Association of * * * * * available for a response before an entering party may cancel it. Currently, Securities Dealers, Inc. (‘‘NASD’’ or II. Self-Regulatory Organization’s there is no minimum life for Directed ‘‘Association’’), through its subsidiary, Statement of the Purpose of, and Orders in SuperMontage. Directed the Nasdaq Stock Market, Inc. Statutory Basis for, the Proposed Rule Orders may be cancelled immediately (‘‘Nasdaq’’), filed with the Securities Change and Exchange Commission (‘‘SEC’’ or after entry, well before a recipient has ‘‘Commission’’) the proposed rule In its filing with the Commission, change as described in Items I, II, and Nasdaq included statements concerning 3 Nasdaq intends to introduce SuperMontage III below, which Items have been the purpose of, and basis for, the through a phased roll-out process where limited proposed rule change and discussed any numbers of securities will transition to trading in prepared by Nasdaq. The Commission is the new SuperMontage environment under new publishing this notice to solicit comments it received on the proposed rules, while the remainder will continue to trade in comments on the proposed rule change rule change. The text of these statements Nasdaq’s current environment. Nasdaq represents from interested persons. may be examined at the places specified that, during this transition, both SuperMontage and in Item IV below. Nasdaq has prepared SelectNet will continue to operate, and a single uniform minimum order cancellation time 10 17 CFR 200.30–3(a)(12). summaries, set forth in sections A, B, parameter will be needed governing both systems. 1 15 U.S.C. 78s(b)(1). and C below, of the most significant 4 See Rule 11Ac1–1 under the Act, 17 CFR 2 17 CFR 240.19b–4. aspects of such statements. 240.11Ac1–1.
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had an opportunity to interact or rapid, more automated nature of trading proposes to implement the rule change respond to them.5 in a SuperMontage environment and the upon launch of the SuperMontage Currently, in SelectNet an order prevention of inappropriate order-entry system. cancellation can occur even if the order and cancellation activity. In connection 2. Statutory Basis has been accepted and executed by the with the introduction of a five-second recipient, if the cancellation message Directed Order minimum life parameter, Nasdaq believes that the proposed from the entering party reaches the Nasdaq proposes to reduce the rule change is consistent with Section Nasdaq system before the recipient’s minimum life of SelectNet orders, as set 15A(b)(6) 7 of the Act, in that the acceptance and execution. The forth below. proposed rule change is designed to SuperMontage will also operate in this b. Reduction of SelectNet Minimum prevent fraudulent and manipulative manner. Thus, if after the five-second Time Period Before Order Cancellation acts and practices, to promote just and minimum life of a Directed Order the Currently, market participants equitable principals of trade, to foster entering party submits a cancellation entering SelectNet orders must wait a cooperation and coordination with but the order has been accepted and minimum of ten seconds after entry person engaged in regulating, clearing, executed by the recipient, the system before they may cancel them. Like the settling, processing information with would recognize whichever message, minimum life standards proposed above respect to, and facilitating transactions cancellation or execution, that it for SuperMontage Directed Orders, this in securities, to remove impediments to receives first. However, Nasdaq ten-second time period was designed to and perfect the mechanism of a free and anticipates that, in most cases, the give the recipients of SelectNet open market and a national market proposed five-second minimum life for messages time to process and respond to system, and, in general, to protect Directed Orders will provide the those messages. investors and the public interest. recipient with ample time to accept and Nasdaq represents that SuperMontage’s Directed Order Process B. Self-Regulatory Organization’s execute the order before the sender is Statement on Burden on Competition eligible to submit a cancellation will rely on a substantially improved version of Nasdaq’s current SelectNet message.6 Nasdaq does not believe that the system architecture and processing In order to ensure that recipients are proposed rule change will result in any functionality, including the parameter given a reasonable opportunity to burden on competition that is not dictating the minimum life of orders. answer or otherwise process incoming necessary or appropriate in furtherance The parameter dictating the minimum Directed Orders, Nasdaq proposes to of the purposes of the Act. life of orders is a single integrated establish a five-second minimum life for functional and timing standard that will C. Self-Regulatory Organization’s those orders. Under this proposed rule be shared simultaneously by both the Statement on Comments on the change, a party entering a Directed SelectNet and SuperMontage systems. Proposed Rule Change Received From Order into SuperMontage cannot cancel Therefore, in order for Nasdaq to Members, Participants or Others that order for at least five seconds. implement the five-second order The Exchange neither solicited nor Nasdaq believes that minimum order cancellation parameter for life parameters reduce the potential for received written comments with respect SuperMontage Directed Orders, it will to the proposed rule change. electronic gaming and system burdens be necessary, prior to the launch of that can result when orders are entered SuperMontage, to adopt a single III. Date of Effectiveness of the and are thereafter immediately uniform minimum time period before Proposed Rule Change and Timing for cancelled in rapid succession, and orders (both SelectNet orders and Commission Action therefore do not represent true trading SuperMontage Directed Orders) may be Within 35 days of the date of interest. Conversely, Nasdaq believes cancelled by entering market publication of this notice in the Federal that having too long a time period in participants. Nasdaq therefore proposes Register or within such longer period (i) which such orders must remain in force to reduce the SelectNet pre-cancellation as the Commission may designate up to before cancellation exposes order-entry waiting period from ten seconds to five 90 days of such date if it finds such parties to the potential for inferior seconds, and use that same five-second longer period to be appropriate and executions during rapid price cross-system standard going forward for publishes its reasons for so finding or movements. Balancing these Directed Orders when SuperMontage (ii) as to which the self-regulatory considerations, Nasdaq proposes to becomes operational. Nasdaq notes that organization consents, the Commission adopt the five-second minimum life the average SelectNet message response will: standard for Directed Orders. Nasdaq time of the overwhelming majority of A. by order approve such proposed believes that a five-second minimum order-delivery market participants is rule change, or life for Directed Orders should create a currently less than two seconds. As B. institute proceedings to determine proper balance between the needs of such, Nasdaq believes that a five-second whether the proposed rule change market participants to respond to the SelectNet minimum order time period is should be disapproved. more than sufficient to allow time for a 5 Nasdaq notes that the SuperMontage Directed response to incoming messages both IV. Solicitation of Comments Order Process operates differently than the process for Non-Directed Orders. If a Non-Directed Order is during the transition period from Interested persons are invited to ‘‘in delivery’’ (delivered to a recipient), SelectNet to SuperMontage, and submit written data, views, and SuperMontage prevents the entering party from thereafter for the Directed Order arguments concerning the foregoing, canceling that order. Directed Orders in Process. including whether the proposed rule SuperMontage are not subject to that processing restriction and can, under current SuperMontage Nasdaq proposes to implement the change is consistent with the Act. rules, be cancelled immediately after entry, even if reduction of the SelectNet order pre- Persons making written submissions they have been already delivered to a market cancellation minimum on July 1, 2002. should file six copies thereof with the participant. As stated above, Nasdaq proposes to Secretary, Securities and Exchange 6 Telephone conversation between Thomas P. Moran, Associate General Counsel, Nasdaq, and make the five-second pre-cancellation Commission, 450 Fifth Street, NW., Sapna C. Patel, Attorney, Division of Market minimum for SuperMontage Directed Regulation, Commission, on April 23, 2002. Orders effective on that same date and 7 15 U.S.C. 78o–3(b)(6).
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Washington, DC 20549–0609. Copies of OMB review. The submitted comments developed beneficiary sub-Saharan the submission, all subsequent become a matter of public record. Notice African countries.’’ amendments, all written statements of the availability of DOS guidelines, as DATES: Effective April 23, 2002. with respect to the proposed rule revised, will be published in the FOR FURTHER INFORMATION CONTACT: change that are filed with the Federal Register and the revised Chris Moore, Director for African Commission, and all written guidelines will be available on the DOS Affairs, Office of the United States communications relating to the web site no later than October 1, 2002. Trade Representative, (202) 395–9514. proposed rule change between the Authority: Section 515 of the Treasury and SUPPLEMENTARY INFORMATION: The Commission and any person, other than General Government Appropriations Act for AGOA (Title I of the Trade and those that may be withheld from the FY 2001 (Public Law 106–554; HR 5658) and Development Act of 2000, Pub. L. No. public in accordance with the the Office of Management and Budget Final 106–200) provides preferential tariff Guidelines issued on January 3, 2002 (67 FR provisions of 5 U.S.C. 552, will be treatment for imports of certain textile available for inspection and copying in 369–378), as corrected and reprinted on February 22, 2002 (67 FR 8451–8460). and apparel products of ‘‘beneficiary the Commission’s Public Reference sub-Saharan African countries,’’ DATES: The public is invited to submit Room. Copies of such filing will also be provided that these countries (1) have comments relative to the proposed available for inspection and copying at adopted an effective visa system and guidelines from May 1 through May 31, the principal office of the NASD. All related procedures to prevent unlawful 2002. submissions should refer to File No. transshipment and the use of counterfeit SR–NASD–2002–55 and should be ADDRESSES: Comments may be documents, and (2) have implemented submitted by May 22, 2002. submitted by electronic mail to and follow, or are making substantial For the Commission, by the Division of [email protected]. progress toward implementing and Market Regulation, pursuant to delegated FOR FURTHER INFORMATION CONTACT: following, certain customs procedures 8 authority. David S. Newman, Attorney-Adviser, that assist the Customs Service in Margaret H. McFarland, Office of the Legal Adviser, Department verifying the origin of the products. Deputy Secretary. of State (telephone: 202/619–6982; e- In Proclamation 7350 (Oct. 2, 2000), [FR Doc. 02–10717 Filed 4–30–02; 8:45 am] mail: [email protected]). The the President designated Senegal as a BILLING CODE 8010–01–P address is Department of State, SA–44, ‘‘beneficiary sub-Saharn African 301 4th Street, SW., Room 700, country.’’ Proclamation 7350 delegated Washington, DC 20547–0001. to the United States Trade Representative the authority to DEPARTMENT OF STATE Dated: April 26, 2002. determine whether designated countries [Public Notice 3999] William A. Eaton, have met the two requirements Assistant Secretary for Administration described above. The President directed Developing Department of State Department of State. the USTR to announce any such Information Quality Guidelines [FR Doc. 02–10882 Filed 4–30–02; 8:45 am] determinations in the Federal Register Pursuant to OMB Information Quality BILLING CODE 4710–08–P and to implement them through Guidelines Under Section 515 of the modifications of the HTS. Based on Treasury and General Government actions that Senegal has taken, I have Appropriations Act for FY 2001 (Public determined that Senegal has satisfied OFFICE OF THE UNITED STATES Law 106–554; HR 5658) these two requirements. TRADE REPRESENTATIVE AGENCY: Department of State. In Proclamation 7400 (Jan. 17, 2001), ACTION: Notice. Determinations Under the African the President proclaimed Swaziland a Growth and Opportunity Act lesser developed beneficiary sub- SUMMARY: The Department of State Saharan African country for purposes of (DOS) is now soliciting comments AGENCY: Office of the United States section 112(b)(3)(B) of the AGOA. Due through its website on proposed Trade Representative. to a technical error, Swaziland was not Information Quality Guidelines ACTION: Notice. added to U.S. note 2(d) to subchapter Pursuant to OMB Information Quality XIX of chapter 98 of the HTS. USTR Guidelines under Section 515 of the SUMMARY: The United States Trade determined that Swaziland qualified for Treasury and General Government Representative (USTR) has determined the textile and apparel benefits of the Appropriations Act for FY 2001 (Public that Senegal has adopted an effective AGOA effective July 26, 2001. See 66 FR Law 106–554; HR 5658). From May 1 visa system and related procedures to 41648. through May 31, 2002, the public is prevent unlawful transshipment and the According, pursuant to the authority invited to comment on these draft use of counterfeit documents in vested in the USTR by Proclamation guidelines, which may be found at connection with shipments of textile 7350, U.S. note 7(a) to subchapter II of http://www.state.gov/r/pa/ei/rls/ and apparel articles and has chapter 98 of the HTS and U.S. note 1 infoguide/. All comments will be implemented and follows, or is making to subchapter XIX of chapter 98 of the considered as DOS develops substantial progress towards HSTS are each modified by inserting Information Quality Guidelines implementing and following, the ‘‘Senegal’’ in alphabetical sequence in pursuant to Office of Management and customs procedures required by the the list of countries. The foregoing Budget Final Guidelines issued on African Growth and Opportunity Act modifications to the HTS are effective February 22, 2002 (67 FR 8451–8460). (AGOA). Therefore, imports of eligible with respect to articles entered, or Comments submitted in response to this products from Senegal qualify for the withdrawn from warehouse for notice may be disclosed in whole or part textile and apparel benefits provided consumption, on or after the effective to OMB in conjunction with the DOS under the AGOA. In addition, this date of this notice. Importers claiming submission of revised guidelines for notice modifies the Harmonized Tariff preferential tariff treatment under the Schedule of the United States (HTS) to AGOA for entries of textile and apparel 8 17 CFR 200.30–3(a)(12). add Swaziland to the list of ‘‘lesser articles should ensure that those entries
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meet the applicable visa requirements. Electronic Access limited by the requirements of section See Visa Requirements Under the An electronic copy of this document 1102 (obligation ceiling) of the TEA–21. African Growth and Opportunity Act, 66 may be downloaded using a modem and In FY 1999, the FHWA received about FR 7837 (2001). suitable communications software from 150 applications under the NCPB/CBI Further, U.S. note 2(d) to subchapter the Government Printing Office’s programs. Of those applications, the XIX of chapter 98 of the HTS is Electronic Bulletin Board Service at FHWA awarded fifty five. In FY 2000, modified by inserting ‘‘Swaziland’’ in (202) 512–1661. Internet users may the FHWA received about 150 alphabetical sequence in the list of reach the Office of the Federal Register’s applications. Of these applications, the countries. This modification to the HTS home page at: http://www.nara.gov/ FHWA awarded sixty five; however, is effective with respect to articles fedreg and the Government Printing approximately 50 percent of the entered, or withdrawn from warehouse Office’s database at: http:// program funds were awarded to projects for consumption, on or after July 26, www.access.gpo.gov/nara. designated by congressional 2001, the effective date of the notice appropriation committees in the reports granting Swaziland textile and apparel Background accompanying the U.S. DOT benefits under the AGAO. The NCPD and the CBI programs are Appropriations Act for FY 2000. In FY 2001, the FHWA received about 150 Robert B. Zoellick, discretionary grant programs funded by applications. Of these applications, the United States Trade Representative. a single funding source. These programs provide funding for planning, project FHWA awarded fifty four, however [FR Doc. 02–10664 Filed 4–30–02; 8:45 am] development, construction and about 65 percent of the funds were BILLING CODE 3190–01–M operation of projects that serve border awarded to projects designated by regions near Mexico and Canada and congressional appropriation committees high priority corridors throughout the in the reports accompanying the U.S. DOT Appropriations Act for FY 2001. DEPARTMENT OF TRANSPORTATION United States. Under the NCPD program, States and metropolitan Of the awards in FY 1999, FY 2000 and Federal Highway Administration planning organizations (MPOs) are FY 2001 most were for less than the eligible for discretionary grants for: requested funding. [FHWA Docket No. FHWA–2000–7392] Corridor feasibility; corridor planning; On May 7, 2001, the FHWA placed a multistate coordination; environmental notice in the Federal Register at 66 FR Transportation Equity Act for the 21st review; and construction. Under the CBI 23073 that solicited statements of intent Century: Implementation Guidance for program, border States and MPOs are to apply, as opposed to full solicitations. the National Corridor Planning and eligible for discretionary grants for: This was done partly because the Development Program and the transportation and safety infrastructure FHWA did not know how much funding Coordinated Border Infrastructure improvements, operation and regulatory would be available and by soliciting Program improvements, and coordination and intent to apply rather than applications, safety inspection improvements in a it would reduce cost to grant seekers, AGENCY: Federal Highway border region. grant reviewers and/or grant Administration (FHWA), DOT. Sections 1118 and 1119 of the coordinators. This Federal Register ACTION: Notice; closing of public docket. Transportation Equity Act for the 21st notice also continued a docket (FHWA– Century (TEA–21), (Public Law 105– 2000–7392) for comments concerning SUMMARY: The FHWA will not be 178, 112 Stat. 107, at 161, June 9, 1998), the notice or the program in general. No soliciting full applications for fiscal year established the NCPD and CBI comments were placed in that docket in (FY) 2002 National Corridor Planning programs, respectively. These programs the period ending April 15, 2000. and Development Program and the respond to substantial interest dating By August 2001, States and MPOs Coordinated Border Infrastructure from 1991. In that year, the Intermodal submitted about 200 statements of (NCPD/CBI) Program funds. Surface Transportation Efficiency Act intent to apply for about $3 billion. Additionally, the FHWA does not plan (ISTEA), (Public Law 102–240, 105 Stat. The President signed the FY 2002 to solicit applications for FY 2003 1914, December 18, 1991), designated a U.S. DOT Appropriations Act in NCPD/CBI Program funds until number of high priority corridors. December 2001. Congress increased Congress completes action on the FY Subsequent legislation modified the funding for the program by more than 2003 U.S. DOT Appropriations Act. corridor descriptions and designated 200 percent by setting aside additional Finally, the FHWA does not plan to additional corridors. Citizen and civic funds for the program under provisions solicit statements of intent to apply for groups promoted many of these of section 110 of title 23 U.S.Code, FY 2003 NCPD/CBI Program before or corridors as a means to accommodate otherwise known as the Revenue after action on the FY 2003 U.S. DOT international trade. Similarly, since Aligned Budget Authority (RABA). Appropriations Act. 1991 a number of studies identified However, consistent with the trend of FOR FURTHER INFORMATION CONTACT: For infrastructure and operational past years, all the FY 2002 funds will be program issues: Mr. Martin Weiss, deficiencies near the U.S. borders with awarded to projects designated by the Office of Intermodal and Statewide Mexico and Canada. Also various congressional appropriations committee Programs, HEPS–10, (202) 366–5010; or groups, some international and/or in the report accompanying the U.S. for legal issues: Mr. Robert Black, Office intergovernmental, studied DOT Appropriations Act for FY 2002. of the Chief Counsel, HCC–30, (202) opportunities to improve infrastructure (See H.R. Conf. Rep. No. 107–308 at 82; 366–1359; Federal Highway and operations. November 30, 2001). Notwithstanding Administration, 400 Seventh Street, Funds for the NCPD and CBI are the designation noted above, the FHWA SW., Washington, DC 20590. Office provided by a single funding source. maintains a public listing of the hours are from 7:45 a.m. to 4:15 p.m., The combined authorized funding for ‘‘statements of intent’’ on the internet at e.t., Monday through Friday, except these two programs is $140 million in the URL: http://www.fhwa.dot.gov/ Federal holidays. each year from FY 1999 to FY 2003 (a hep10/corbor/2002/ SUPPLEMENTARY INFORMATION: total of $700 million). Program funds are intenttoapply2002.html.
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Therefore, the FHWA will not be vehicles that were not originally eligible for importation into the United soliciting full applications for FY 2002 manufactured to comply with all States. The vehicles which WETL NCPD/CBI program funds. Additionally, applicable Federal motor vehicle safety believes are substantially similar are the FHWA does not plan to solicit standards are eligible for importation 1978 General Motors Blazer applications for FY 2003 NCPD/CBI into the United States because (1) they multipurpose passenger vehicles that program funds until the Congress are substantially similar to vehicles that were manufactured for sale in the completes action on the FY 2003 U.S. were originally manufactured for sale in United States and certified by their DOT Appropriations Act. Finally, the the United States and that were certified manufacturer, General Motors FHWA does not plan to solicit by their manufacturer as complying Corporation, as conforming to all statements of intent to apply for FY with the safety standards, and (2) they applicable Federal motor vehicle safety 2003 NCPD/CBI program funds either are capable of being readily altered to standards. before or after congressional action on conform to the standards. The petitioner claims that it carefully the FY 2003 U.S. DOT Appropriations DATES: The closing date for comments compared non-U.S. certified 1978 Act. on the petition is May 31, 2002. General Motors Blazer multipurpose States that wish to substantially ADDRESSES: Comments should refer to passenger vehicles to their U.S.-certified modify their Statements of intent for the docket number and notice number, counterparts, and found the vehicles to their own reasons may, of course, do so, and be submitted to: Docket be substantially similar with respect to and similarly those who wish to send Management, Room PL–401, 400 compliance with most Federal motor the modification to the FHWA Divisions Seventh St., SW., Washington, DC vehicle safety standards. WETL submitted information with its in their State may do so. 20590. [Docket hours are from 9 a.m. to petition intended to demonstrate that Finally, because no comments were 5 p.m.]. submitted to the docket and because of non-U.S. certified 1978 General Motors FOR FURTHER INFORMATION CONTACT: Blazer multipurpose passenger vehicles, the designations noted above, the George Entwistle, Office of Vehicle FHWA is closing the docket on this as originally manufactured, conform to Safety Compliance, NHTSA (202–366– many Federal motor vehicle safety program. 5306). Information concerning the NCPD/CBI standards in the same manner as their SUPPLEMENTARY INFORMATION: program, including grant applications, U.S. certified counterparts, or are capable of being readily altered to grant selections, solicitations, maps, Background statutory language, etc. are available on conform to those standards. Under 49 U.S.C. 30141(a)(1)(A), a Specifically, the petitioner claims that the internet at the following URL: motor vehicle that was not originally non-U.S. certified 1978 General Motors http://www.fhwa.dot.gov/hep10/corbor/ manufactured to conform to all Blazer multipurpose passenger vehicles index.html. applicable Federal motor vehicle safety are identical to their U.S. certified Authority: 23 U.S.C. 315; Public Law 105– standards shall be refused admission counterparts with respect to compliance 178, 112 Stat. 107, 161 to 164, as amended; into the United States unless NHTSA with Standard Nos. 101 Controls and 49 CFR 1.48. has decided that the motor vehicle is Displays, 102 Transmission Shift Lever Issued on:April 22, 2002. substantially similar to a motor vehicle Sequence * * *, 103 Defrosting and Mary E. Peters, originally manufactured for importation Defogging Systems, 104 Windshield Administrator, Federal Highway into and sale in the United States, Wiping and Washing Systems, 106 Administration. certified under 49 U.S.C. 30115, and of Brake Hoses, 108 Lamps, Reflective [FR Doc. 02–10765 Filed 4–30–02; 8:45 am] the same model year as the model of the Devices and Associated Equipment, 113 BILLING CODE 4910–22–P motor vehicle to be compared, and is Hood Latch Systems, 116 Motor Vehicle capable of being readily altered to Brake Fluids, 119 New Pneumatic Tires conform to all applicable Federal motor for Vehicles other than Passenger Cars, DEPARTMENT OF TRANSPORTATION vehicle safety standards. 124 Accelerator Control Systems, 202 Petitions for eligibility decisions may Head Restraints, 204 Steering Control National Highway Traffic Safety be submitted by either manufacturers or Rearward Displacement, 205 Glazing Administration importers who have registered with Materials, 206 Door Locks and Door NHTSA pursuant to 49 CFR part 592. As [Docket No. NHTSA–2002–11880] Retention Components, 207 Seating specified in 49 CFR 593.7, NHTSA Systems, 209 Seat Belt Assemblies, 210 Notice of Receipt of Petition for publishes notice in the Federal Register Seat Belt Assembly Anchorages, 212 Decision that Nonconforming 1978 of each petition that it receives, and Windshield Retention, 219 Windshield General Motors Blazer Multipurpose affords interested persons an Zone Intrusion, 301 Fuel System Passenger Vehicles Are Eligible for opportunity to comment on the petition. Integrity, and 302 Flammability of Importation At the close of the comment period, Interior Materials. NHTSA decides, on the basis of the Additionally, the petitioner states that AGENCY: National Highway Traffic petition and any comments that it has non-U.S. certified 1978 General Motors Safety Administration, DOT. received, whether the vehicle is eligible Blazer multipurpose passenger vehicles ACTION: Notice of receipt of petition for for importation. The agency then comply with the Vehicle Identification decision that nonconforming 1978 publishes this decision in the Federal Number plate requirement of 49 CFR General Motors Blazer multipurpose Register. part 565. passenger vehicles are eligible for Wallace Environmental Testing Petitioner further contends that the importation. Laboratories, Inc. of Houston, Texas vehicles are capable of being readily (‘‘WETL’’) (Registered Importer 90–005) altered to meet the following standards, SUMMARY: This document announces has petitioned NHTSA to decide in the manner indicated: receipt by the National Highway Traffic whether 1978 General Motors Blazer Standard No. 111 Rearview Mirror: Safety Administration (NHTSA) of a multipurpose passenger vehicles, Replacement of the passenger side petition for a decision that 1978 General originally manufactured for sale in rearview mirror, which is flat and has Motors Blazer multipurpose passenger European and other foreign markets, are 1:1 magnification.
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Standard No. 120 Tire Selection and Mercedes Benz SL (Body 230) passenger J.K. Technologies, L.L.C. of Baltimore, Rims for Motor Vehicles other than cars are eligible for importation. Maryland (‘‘J.K.’’) (Registered Importer Passenger Cars: Installation of a tire 90–006) has petitioned NHTSA to information placard. SUMMARY: This document announces decide whether 2001–2002 Mercedes Standard No. 208 Occupant Crash receipt by the National Highway Traffic Benz SL (Body 230) passenger cars are Protection: Installation of an audible Safety Administration (NHTSA) of a eligible for importation into the United safety belt warning system. The petition for a decision that 2001–2002 States. The vehicles which J.K. believes petitioner states that the vehicle is Mercedes Benz SL (Body 230) passenger are substantially similar are 2001–2002 equipped with Type II seat belts in both cars that were not originally Mercedes Benz SL (Body 230) passenger front outboard seating positions and manufactured to comply with all cars that were manufactured for Type I seat belts in the rear outboard applicable Federal motor vehicle safety importation into, and sale in, the United and center seating positions and that standards are eligible for importation States and certified by their driver and front outboard passenger into the United States because (1) They manufacturer as conforming to all seating positions are not required to are substantially similar to vehicles that applicable Federal motor vehicle safety have air bags. were originally manufactured for standards. importation into and sale in the United The petitioner also states that a The petitioner claims that it carefully States and that were certified by their certification label must be affixed to the compared non-U.S. certified 2001–2002 manufacturer as complying with the driver’s side door jamb to meet the Mercedes Benz SL (Body 230) passenger safety standards, and (2) they are requirements of 49 CFR part 567. cars to their U.S.-certified counterparts, capable of being readily altered to and found the vehicles to be Interested persons are invited to conform to the standards. submit comments on the petition substantially similar with respect to DATE: The closing date for comments on described above. Comments should refer compliance with most Federal motor the petition is May 31, 2002. to the docket number and be submitted vehicle safety standards. to: Docket Management, Room PL–401, ADDRESS: Comments should refer to the J.K. submitted information with its 400 Seventh St., SW, Washington, DC docket number and notice number, and petition intended to demonstrate that 20590. [Docket hours are from 9 am to be submitted to: Docket Management, non-U.S. certified 2001–2002 Mercedes 5 pm]. It is requested but not required Room PL–401, 400 Seventh St., SW, Benz SL (Body 230) passenger cars, as that 10 copies be submitted. Washington, DC 20590. [Docket hours originally manufactured for sale in All comments received before the are from 9 am to 5 pm]. Europe, conform to many Federal motor close of business on the closing date FOR FURTHER INFORMATION CONTACT: vehicle safety standards in the same indicated above will be considered, and George Entwistle, Office of Vehicle manner as their U.S. certified will be available for examination in the Safety Compliance, NHTSA (202–366– counterparts, or are capable of being docket at the above address both before 5306). readily altered to conform to those and after that date. To the extent SUPPLEMENTARY INFORMATION: standards. possible, comments filed after the Specifically, the petitioner claims that closing date will also be considered. Background non-U.S. certified 2001–2002 Mercedes Notice of final action on the petition Under 49 U.S.C. 30141(a)(1)(A), a Benz SL (Body 230) passenger cars are will be published in the Federal motor vehicle that was not originally identical to their U.S. certified Register pursuant to the authority manufactured to conform to all counterparts with respect to compliance indicated below. applicable Federal motor vehicle safety with Standard Nos. 102 Transmission standards shall be refused admission Shift Lever Sequence. * * *, 103 Authority: 49 U.S.C. 30141(a)(1)(A) and Defrosting and Defogging Systems, 104 (b)(1); 49 CFR 593.8; delegations of authority into the United States unless NHTSA at 49 CFR 1.50 and 501.8. has decided that the motor vehicle is Windshield Wiping and Washing substantially similar to a motor vehicle Systems, 105 Hydraulic Brake Systems, Issued on: April 25, 2002. originally manufactured for importation 106 Brake Hoses, 109 New Pneumatic Marilynne Jacobs, into and sale in the United States, Tires, 113 Hood Latch Systems, 116 Director, Office of Vehicle Safety Compliance. certified under 49 U.S.C. 30115, and of Brake Fluid, 118 Power Window [FR Doc. 02–10761 Filed 4–30–02; 8:45 am] the same model year as the model of the Systems, 124 Accelerator Control Systems, 135 Passenger Car Brake BILLING CODE 4910–59–P motor vehicle to be compared, and is capable of being readily altered to Systems, 201 Occupant Protection in conform to all applicable Federal motor Interior Impact, 202 Head Restraints, DEPARTMENT OF TRANSPORTATION vehicle safety standards. 204 Steering Control Rearward Petitions for eligibility decisions may Displacement, 205 Glazing Materials, National Highway Traffic Safety be submitted by either manufacturers or 206 Door Locks and Door Retention Administration importers who have registered with Components, 207 Seating Systems, 209 NHTSA pursuant to 49 CFR part 592. As Seat Belt Assemblies, 210 Seat Belt [Docket No. NHTSA–2002–11846] specified in 49 CFR 593.7, NHTSA Assembly Anchorages, 212 Windshield publishes notice in the Federal Register Retention, 216 Roof Crush Resistance, Notice of Receipt of Petition for of each petition that it receives, and 219 Windshield Zone Intrusion, 301 Decision That Nonconforming 2001– affords interested persons an Fuel System Integrity, and 302 2002 Mercedes Benz SL (Body 230) opportunity to comment on the petition. Flammability of Interior Materials. Passenger Cars Are Eligible for At the close of the comment period, In addition, the petitioner claims that Importation NHTSA decides, on the basis of the the vehicles comply with the Bumper petition and any comments that it has Standard found in 49 CFR Part 581. AGENCY: National Highway Traffic received, whether the vehicle is eligible The petitioner also contends that the Safety Administration, DOT. for importation. The agency then vehicles are capable of being readily ACTION: Notice of receipt of petition for publishes this decision in the Federal altered to meet the following standards, decision that nonconforming 2001–2002 Register. in the manner indicated:
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Standard No. 101 Controls and possible, comments filed after the number 249), Medallion (model Displays: replacement of the instrument closing date will also be considered. numbers 251, 254 and 259), Horizon cluster and cruise control lever with Notice of final action on the petition (model numbers 420, 421, 425, and U.S.-model components. will be published in the Federal 426), Conquest (model numbers 428, Standard No. 108 Lamps, Reflective Register pursuant to the authority and 429) and Tether Kits (model Devices and Associated Equipment: (a) indicated below. number 628). These child restraints and installation of U.S.-model headlamps Authority: 49 U.S.C. 30141(a)(1)(A) and tether kits were manufactured between and front sidemarker lamps, and (b) (b)(1); 49 CFR 593.8; delegations of authority January 1, 1998 and May 30, 2000. A installation of U.S.-model taillamp at 49 CFR 1.50 and 501.8. total of 959,514 convertible child seats assemblies that incorporate rear Issued on: April 25, 2002. and 40,001 tether kits are in sidemarker lamps. Marilynne Jacobs, noncompliance with this requirement. Standard No. 110 Tire Selection and Evenflo supports its application for Director, Office of Vehicle Safety Compliance. Rims: installation of a tire information inconsequential noncompliance with placard. [FR Doc. 02–10762 Filed 4–30–02; 8:45 am] the following: Standard No. 111 Rearview Mirror: BILLING CODE 4910–59–P ‘‘In March 2000, Evenflo received a PE replacement of the passenger side [Preliminary Evaluation] from NHTSA rearview mirror with a U.S.-model DEPARTMENT OF TRANSPORTATION relating to a potential noncompliance of component. tether webbing after being subject to abrasion Standard No. 114 Theft Protection: National Highway Traffic Safety as specified in S5.1(d) of FMVSS No. 209 reprogramming to activate the theft (referenced in S5.4.1(a) of FMVSS No. 213). Administration prevention warning system. According to NHTSA, based upon testing Standard No. 208 Occupant Crash [Docket No. NHTSA–2000–7818; Notice 2] conducted by NHTSA at SGS U.S. Testing, Protection: (a) reprogramming to the Elizabeth Mills black tether webbing activate the seat belt warning buzzer; (b) Evenflo Company, Inc., Grant of (vendor style #7635) retained only 67.1 inspection of all vehicles and Application for Decision of percent of its unabraded strength. Section Inconsequential Noncompliance S5.4.1(a) of FMVSS No. 213 requires webbing replacement of the driver’s and used to attach a child restraint to a vehicle passenger’s side air bags, knee bolsters, Evenflo Company, Inc., of Vandalia, to have a breaking strength after abrasion of control units, sensors, and seat belts Ohio, has determined that 999,515 child not less than 75 percent of the unabraded with U.S.-model components on restraint systems that it manufactured webbing strength. vehicles that are not already so fail to comply with S5.4.1(a) of Federal In April 2000, Evenflo reviewed testing results from ongoing testing at Elizabeth equipped. Petitioner states that the front Motor Vehicle Safety Standard (FMVSS) outboard designated seating positions Webbing Mills that showed all 82 test results No. 213, ‘‘Child Restraint Systems,’’ acceptable on tests conducted from January have combination lap and shoulder which incorporates S5.1(d) of FMVSS belts that are self-tensioning and that 28, 1998 to March 13, 2000. The control chart No. 209, ‘‘Seat Belt Assemblies,’’ and showed the process to be in statistical release by means of a single red has filed an appropriate report pursuant control. pushbutton. Petitioner further states that to 49 CFR part 573, ‘‘Defect and Evenflo visited SGS U.S. Testing in the vehicles are equipped with a seat Noncompliance reports.’’ Evenflo has Fairfield, New Jersey to review the testing belt warning lamp that is identical to also applied to be exempted from the process and obtain samples of the potential the lamp installed on U.S.-certified notification and remedy requirements of nonconforming tether webbing material tested. SGS U.S. Testing did not keep the test models. 49 U.S.C. Chapter 301 —‘‘Motor Vehicle Standard No. 214 Side Impact samples and had not finished its test report. Safety’’ on the basis that the Protection: Inspect vehicles and replace Evenflo then tried to obtain samples from noncompliance is inconsequential to any non-complying part with U.S. our finished good warehouse close to the motor vehicle safety. model parts. The petitioner states that date code tested by SGS U.S. testing. Exact Notice of receipt of the application matches of the date code could not be found. the vehicles are equipped with side was published on August 29, 2000, in Samples of a close date code were then tested impact air bags identical to those found the Federal Register (65 FR 52471), with at the following independent test labs: on U.S.-certified models. a 30-day comment period. NHTSA Indiana Mills (IMMI), Magill, ACW, and The petitioner also states that a received no comments. Elizabeth Webbing Mills. The test results vehicle identification plate must be FMVSS No. 213, S5.4.1(a) yielded a variety of results from 56 to 88 affixed to the vehicles near the left ‘‘Performance Requirements,’’ requires percent of unabraded strength. A follow up of the test results revealed differences in test windshield post and a reference and that: certification label must be affixed in the set-ups and test equipment. The webbing of belts provided with a child Concurrently, Evenflo conducted sled area of the left front door post to meet restraint system and used to attach the the requirements of 49 CFR part 565. testing of abraded and unabraded tethers at system to the vehicle or to restrain the child Veridian to determine if [there] was a safety Interested persons are invited to within the system shall, after being subjected concern with the tethers in use in the field. submit comments on the petition to abrasion as specified in S5.1(d) or S5.3(c) All test results shared the same basic described above. Comments should refer of FMVSS No. 209, have a breaking strength performance for abraded and unabraded to the docket number and be submitted of not less than 75 percent of the strength of tethers. The testing demonstrated at least a 90 to: Docket Management, Room PL–401, the unabraded webbing when tested in percent margin on tensile strength after 400 Seventh St., SW, Washington, DC accordance with S5.1(b) of FMVSS No. 209. abrasion (mean tensile strength after abrasion 20590. [Docket hours are from 9 am to Evenflo has determined that certain is 3,101 pounds and the maximum tensile 5 pm]. It is requested but not required child restraints it manufactured may load in sled testing was 1,616 pounds). that 10 copies be submitted. have tether straps which fail the According to Evenflo, the sled test results All comments received before the webbing strength requirements of clearly demonstrate that there were no potential safety issues associated with close of business on the closing date FMVSS No. 213, S5.4.1(a). The child abraded or unabraded tethers on the child indicated above will be considered, and restraints containing the noncompliance restraint systems, and that there is more than will be available for examination in the are Ultara (model numbers 234, 235, an adequate margin of safety to protect docket at the above address both before 236, 237, 238, and 239), Secure Comfort against failures during reasonably expected and after that date. To the extent (model number 247), Champion (model usage.
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Elizabeth Webbing Mills discovered an belt assemblies. The agency also Issued on April 25, 2002. error in the manufacture of its test evaluated child restraint data obtained Stephen R. Kratzke, equipment. An angle specified for 85 degrees in the 2001 New Car Assessment Associate Administrator for Safety on the equipment was actually built to 90 Performance Standards. degrees. Testing with the correct angle Program (NCAP), and Transport revealed a significant effect on the webbing Canada’s dynamic and static load [FR Doc. 02–10647 Filed 4–30–02; 8:45 am] Evenflo used but not on the webbing used by distributions data on tether anchorages BILLING CODE 4910–59–P Evenflo’s competitors. and hooks.1 Results of this analysis To verify and understand this effect, show that the Evenflo dynamic tests at Evenflo performed a multi-factor factorial Veridian produced tether loading DEPARTMENT OF TRANSPORTATION design of experiment. The design of consistent with measured tether loads in experiment confirmed the effect of Evenflo’s Surface Transportation Board webbing material relative to other tether agency testing. Based on its analysis, the [STB Finance Docket No. 34194] material and the percent unabraded test, but agency has determined that the webbing also identified a test set-up within FMVSS used in Evenflo’s child restraints The Burlington Northern and Santa Fe No. 213 and FMVSS No. 209 that would achieved the performance previously yield potentially passing results. A question Railway Company-Trackage Rights specified in FMVSS No. 209 and Exemption—Union Pacific Railroad of what was the proper test weight, 1.5 or FMVSS No. 213 during 1971–1979 for 2.33 Kg. to use in the testing process was Company webbing in the unabraded condition identified. Union Pacific Railroad Company (UP) Evenflo then requested an official and after abrasion conditioning. has agreed to grant temporary overhead interpretation from NHTSA as to the correct Furthermore, the agency notes that test weight to be used. A verification test was trackage rights to The Burlington from 1971 to 1979, FMVSS No. 213 was Northern and Santa Fe Railway conducted to confirm the test set-up ‘‘Child Seating Systems,’’ and Type 3 identified by the multi-factor factorial design Company (BNSF) from UP’s milepost of experiment. On June 19, 2000, the testing seat belt assembly minimum breaking 2.3 in Omaha, NE, to milepost 76.0 in did not reveal an acceptable pass rate and as strength requirements were used to Sioux City, IA, for a distance of 73.7 a result Evenflo has stopped manufacture and determine compliance for resistance to miles.1 shipment of child restraint systems using this abrasion. During that period, the The transaction was scheduled to be Elizabeth Webbing Mills style of webbing minimum breaking strength for a Type consummated on April 15, 2002. The and is filing this section 573, non-compliance 3 belt for webbing connecting pelvic temporary trackage rights will allow information report.’’ and upper torso restraints to attachment BNSF to bridge its train service over the Under 49 U.S.C. 30118(d) and hardware when the assembly had a UP line while BNSF’s main line is out 30120(h), NHTSA may exempt single webbing connection was 17,793 of service due to maintenance. manufacturers from the Act’s N. The minimum value after abrasion As a condition to this exemption, any notification and remedy requirements was 75% of this value, or 13,345 N. employees affected by the trackage when it determines that a Evenflo’s EWM unabraded tether rights will be protected by the noncompliance is inconsequential to webbing strength of 20,426 N, and the conditions imposed in Norfolk and motor vehicle safety. Evenflo states that EWM abraded strength of 13,706 N, both Western Ry. Co.—Trackage Rights—BN, it believes that the noncompliance here surpass the previous requirements for 354 I.C.C. 605 (1978), as modified in should be found to be inconsequential Type 3 webbing. Mendocino Coast Ry., Inc.—Lease and because the products meet the intent of Operate, 360 I.C.C. 653 (1980). the FMVSS No. 209 and FMVSS No. 213 For these reasons, the agency has This notice is filed under 49 CFR performance requirements. Evenflo also decided that Evenflo has met its burden 1180.2(d)(7). If it contains false or stated that its testing has established of persuasion that the noncompliance at misleading information, the exemption that even in the severely abraded issue is inconsequential to safety and its is void ab initio. Petitions to revoke the condition, child restraints with this application is granted. Accordingly, exemption under 49 U.S.C. 10502(d) tether webbing, which was Evenflo is hereby exempted from the may be filed at any time. The filing of manufactured by Elizabeth Webbing notification and remedy provisions of a petition to revoke will not Mills (EWM), pass dynamic sled testing 49 U.S.C. sections 30118 and 30120. automatically stay the transaction. with over a 90 percent strength safety NHTSA believes that the absence of An original and 10 copies of all margin. Finally, Evenflo asserts that the minimum breaking strength pleadings, referring to STB Finance EWM webbing tethers are stronger requirements for unabraded webbing in Docket No. 34194, must be filed with before abrasion than the tethers of other child restraint systems in the current the Surface Transportation Board, Case major U.S. child restraint version of FMVSS No. 213 is Control Unit, 1925 K Street, NW., manufacturers. Only when the EWM inappropriate. We plan to initiate Washington, DC 20423–0001. In addition, one copy of each pleading webbing tethers are severely abraded is rulemaking to amend FMVSS No. 213 to must be served on Michael E. Roper, their strength reduced to that of the require a minimum breaking strength for Senior General Attorney, The competitors’ tethers. This accounts for webbing used in child restraint systems. the EWM webbing tethers’ Burlington Northern and Santa Fe The breaking strength requirements are Railway Company, P.O. Box 961039, noncompliance with the 75 percent needed to ensure that all child restraints strength retention requirement, but, Fort Worth, TX 76161–0039. being introduced into the market have according to Evenflo, it has no effect on adequate webbing strength to provide 1 the safety of the EWM webbing tethers On April 10, 2002, BNSF filed a petition for child safety protection over their in real world use. exemption in STB Finance Docket No. 34194 (Sub- lifetime. No. 1), The Burlington Northern and Santa Fe The agency has reviewed Evenflo’s Railway Company—Trackage Rights Exemption— application, analyzed Office of Vehicle Authority: 49 U.S.C. 30118(d) and Union Pacific Railroad Company, wherein BNSF Safety Compliance’s (OVSC) data, and 30120(h); delegations of authority at 49 CFR requests that the Board permit the proposed 1.50 and 501.8. temporary overhead trackage rights arrangement other data pertaining to breaking described in the present proceeding to expire on strength and abrasion of webbing used April 30, 2002. That petition will be addressed by in child restraint systems and adult seat 1 Docket No. NHTSA–1999–6160–19. the Board in a separate decision.
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Board decisions and notices are e:mail address: transactional data via the web portal. available on our website at [email protected]; FAX Eventually the account owner will also www.stb.dot.gov. number: (703) 329–5235. Applications have the option to delegate portal Decided: April 25, 2002. to participate will only be accepted via access. In the initial phase of the test By the Board, David M. Konschnik, e:mail sent to program participants will only have Director, Office of Proceedings. [email protected]. access to static data and basic account Vernon A. Williams, FOR FURTHER INFORMATION CONTACT: Ms. profile information necessary to establish an account. In the later stages Secretary. Hedwig Lock, U.S. Customs Service, Office of Field Operations, Trade of the test participants will have access [FR Doc. 02–10753 Filed 4–30–02; 8:45 am] to more extensive operational BILLING CODE 4915–00–P Programs, Commercial Compliance, Account Management; Tel. (703) 317– transaction data through the web portal. 3657; e:mail address: This test will be delivered in a phased [email protected]. approach, with primary deployment DEPARTMENT OF THE TREASURY scheduled for no earlier than October SUPPLEMENTARY INFORMATION: 28, 2002. The timeline for ACE is Customs Service Background subject to change based on funding and First Phase of Automated Commercial The Customs Modernization Program technical requirements. Future phases Environment (ACE): Announcement of has been created to improve efficiency, of the Automated Commercial a National Customs Automation increase effectiveness, and reduce costs Environment (ACE) will be developed Program Test for the ACE Account for Customs and all of its communities and deployed throughout the ACE Portal of interest. The ability to meet these development period, for use by the trade objectives depends heavily on and Customs personnel selected to test AGENCY: Customs Service, Treasury. successfully modernizing Customs the Account Portal. ACTION: General notice. business functions and the information Customs plans to select approximately forty importer accounts SUMMARY: This document announces technology that supports those functions. from the list of qualified applicants for Customs plan to conduct a National the initial deployment of this test. A Customs Automation Program test of the The initial thrust of the Customs Modernization Program focuses on primary benefit for the initial first phase of the Automated participants will be an early opportunity Commercial Environment. This test will Trade Compliance and the development of the Automated Commercial to provide direct input into the initial allow importers and authorized parties design of the Account Portal. Additional to access their Customs data via a web- Environment (ACE) through the National Customs Automation Program participants may be selected throughout based Account Portal. This test is the the duration of this test. first step toward the full electronic (NCAP). ACE is not only a replacement processing of commercial importations system for the Automated Commercial Eligibility Criteria in the Automated Commercial System (ACS); it is an effort to streamline business processes to To be eligible for participation in this Environment with a focus on defining test, an importer must: and establishing the importer’s account facilitate the growth in trade and foster participation in global commerce, while 1. Participate in the Customs Trade structure. Customs plans to initially Partnership Against Terrorism (C– accept approximately forty importer ensuring compliance with U.S. laws and regulations. TPAT). C–TPAT is a joint government- accounts for participation in this test, business initiative to build cooperative and may expand the universe of The ACE development strategy consists of partitioning ACE into four relationships that strengthen overall participants during the test. This notice supply chain and border security. For provides a description of the test, major increments. Each increment, while individually achieving critical further information, please refer to the outlines the development and Customs website at http:// evaluation methodology to be used, sets business needs, also lays the foundation for subsequent increments. This test www.customs.gov/enforcem; and forth the eligibility requirements for 2. Have the ability to connect to the participation, invites public comment will be part of the first phase of ACE. This test is the first step towards Internet. on any aspect of the planned test, and changing the way that the world Customs expects to select a broad opens the application period for interacts with U.S. Customs. This test range of importers representing various participation. will allow account holders to view industries. Applications will be EFFECTIVE DATES: The test will integrated data for their account considered from all volunteers; commence no earlier than October 28, information from multiple system however, priority consideration for 2002. The test will run for sources. It will enable Customs and selection of the initial participants will approximately two years and may be account holders to interact via newly be given to: extended or modified. Comments created account portals. This test 1. Importers that use carriers that concerning this notice and all aspects of accommodates both Customs and the participate in the Customs Industry the announced test may be submitted at trade. The Account Portal has the ability Partnership Programs (IPP). IPP consists any time. Applications may also be to access, manage and disseminate of several partnership programs that aim submitted at any time; however, in information in an efficient and secure to engage the trade community in a order to be eligible as one of the initial manner. As an example, when a trade cooperative relationship with Customs participants, applications must be participant enters ACE, the Account in the war on drugs and terrorism, such received by June 1, 2002. Portal will present data specific to that as the Carrier Initiative Program and the ADDRESSES: Written comments participant’s account transactions. Business Anti-Smuggling Coalition. For regarding this notice may be submitted Participants in this test will further information on Industry to Ms. Hedwig Lock at U.S. Customs eventually have the opportunity to use Partnership Programs, please refer to the Service, 2850 Eisenhower Ave.—First the account management functions such Customs website at http:// Floor, Alexandria, Virginia 22314; as account access to their profile and www.customs.gov/enforcem; and
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2. Importers who have participated in (December 8, 1993), Customs amended • Policy and procedure the Account Management Program for at its regulations (19 CFR chapter I), in accommodation; least one year and who are managed by part, to enable the Commissioner of • Trade compliance impact; a full-time Account Manager. Customs to conduct limited test • Problem resolution; • programs or procedures designed to System efficiency; Application Process • Operational efficiency; evaluate planned components of the • Each application for participation in National Customs Automation Program. Other issues identified by the this test must include the following Section 101.9(b) of the Customs participant group. information: Regulations (19 CFR 101.9(b)) provides Dated: April 26, 2002. 1. Importer name, for the testing of NCAP programs or Bonni G. Tischler, 2. Unique importer number (e.g., SSN, procedures. See T.D. 95–21. This test is Assistant Commissioner, Office of Field EIN, Customs Assigned Importer #, established pursuant to that regulatory Operations. DUNS #), provision. [FR Doc. 02–10777 Filed 4–30–02; 8:45 am] 3. Statement certifying participation BILLING CODE 4820–02–P in C–TPAT, and Misconduct Under the Test 4. Statement certifying the capability If a test participant fails to follow the to connect to the Internet. terms and conditions of this notice, fails DEPARTMENT OF THE TREASURY In order to be eligible as one of the to exercise reasonable care in the initial participants, completed execution of participant obligations, Internal Revenue Service applications must be received by June 1, fails to abide by applicable laws and 2002. Applicants will be notified by Draft Information Quality Guidelines regulations, misuses the Account Portal, Customs of the status of their engages in any unauthorized disclosure AGENCY: Internal Revenue Service (IRS), application, whether it is held pending or access to the Account Portal, or Treasury. further expansion or accepted for initial engages in any activity which interferes participation. An applicant who does ACTION: Notice and request for with the successful evaluation of the not meet the eligibility criteria or who comments. new technology, the participant may be provides an incomplete application will subject to civil and criminal penalties, SUMMARY: The IRS is publishing this be notified and given the opportunity to administrative sanctions, and/or notice of availability of its draft resubmit their application. suspension from this test. Any decision Information Quality Guidelines on the Upon selection into the test, Customs proposing suspension of a participant agency’s website at http://www.irs.gov/ may request additional information for may be appealed in writing to Ms. newsroom/ [‘‘click’’ on ‘‘What’s Hot’’] to the account profile. Participants incur a Hedwig Lock within 15 days of the provide an opportunity for the public to continuing obligation to provide decision date. Such proposed comment by June 15, 2002. Customs with any updates or changes to suspension will apprise the participant DATES: Written comments should be the information they submit. All data of the facts or conduct warranting received on or before June 15, 2002, to submitted and entered into the Account suspension. Should the participant be assured of consideration. Portal is subject to the Trade Secrets Act appeal the notice of proposed ADDRESSES: All submissions must be in (18 U.S.C. 1905) and is considered suspension, the participant should writing or in electronic form. Please confidential and subject to the address the facts or conduct charges send e-mail comments to appropriate levels of governmental contained in the notice and state how [email protected], or facsimile control and protection. While the test is compliance will be achieved. However, transmissions to FAX Number (202) scheduled to begin October 28, 2002, in the case of willfulness or where 622–7153 re: IRS Information Quality participation in this test may be delayed public health interests or safety are Guidelines. Comments sent by mail due to funding and technological concerned, the suspension may be should be sent to: Internal Revenue constraints. Future phases of ACE may effective immediately. Service, 1111 Constitution Avenue, also be tested; however, the eligibility NW., Room 3524, Washington, DC criteria may differ from the criteria Test Evaluation Criteria 20224, ATTN: Wayne Wiegand (Senders listed in this notice. Acceptance into To ensure adequate feedback, should be aware that there have been this test does not guarantee eligibility participants are required to participate some unpredictable and lengthy delays for, or acceptance into future technical in an evaluation of this test. Customs in postal deliveries to the Washington, tests. Each participant will designate one also invites all interested parties to DC area in recent weeks and may prefer person as the account owner for the comment on the design, conduct and to make electronic submissions.) company’s portal account information. implementation of the test at any time. FOR FURTHER INFORMATION CONTACT: The account owner will be responsible The final results will be published in Wayne Wiegand, Office of the Deputy for safeguarding the company’s portal the Federal Register and the Customs Commissioner for Modernization/Chief account information, controlling all Bulletin as required by § 101.9(b) of the Information Officer, Internal Revenue disclosures of that information to Customs Regulations. Service, 1111 Constitution Avenue, authorized persons, authorizing user The following evaluation methods Room 3524, Washington, DC 20224. access to the Account Portal and and criteria have been suggested: Telephone (202) 927–4412 or by email ensuring that access to the company’s 1. Baseline measurements to be to [email protected]. portal account information by established through data analysis. SUPPLEMENTARY INFORMATION: On authorized persons is strictly controlled. 2. Questionnaires from both trade January 3, 2002, OMB published participants and Customs addressing guidelines for ensuring and maximizing Authorization for the Test such issues as: the quality, objectivity, utility, and Pursuant to Customs Modernization • Workload impact (workload shifts/ integrity of information disseminated by provisions in the North American Free volume, cycle times, etc.); Federal Agencies. These guidelines call Trade Agreement Implementation Act, • Cost savings (staff, interest, upon each agency to develop a draft Pub. L. 103–182, 107 Stat. 2057, 2170 reduction in mailing costs, etc.); report
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not later than May 1, 2002. The IRS will audiovisual forms. This means Dated: April 26, 2002. use these guidelines to develop information that the IRS posts to the Wayne Wiegand, processes for disseminating quality Internet as well as sponsored Staff Advisor, Modernization & Information information. The guidelines apply to distribution of information to the Technology Services. information disseminated to the public public. They do not apply to opinions [FR Doc. 02–10780 Filed 4–30–02; 8:45 am] in any medium including textual, or hyperlinks to information that others BILLING CODE 4830–01–P graphic, narrative, numerical, or disseminate.
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Corrections Federal Register Vol. 67, No. 84
Wednesday, May 1, 2002
This section of the FEDERAL REGISTER DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION contains editorial corrections of previously published Presidential, Rule, Proposed Rule, Federal Aviation Administration Federal Aviation Administration and Notice documents. These corrections are prepared by the Office of the Federal 14 CFR Part 39 Register. Agency prepared corrections are [Summary Notice No. PE-2002-21] issued as signed documents and appear in [Docket No. 2001–CE–47–AD; Amendment the appropriate document categories 39–12709; AD 2002–08–02] Petitions for Exemption; Summary of elsewhere in the issue. Petitions Received RIN 2129–AA64 Correction Airworthiness Directives; Fairchild FEDERAL COMMUNICATIONS Aircraft, Inc. Models SA226 and SA227 In notice document 02–7484 COMMISSION Series Airplanes appearing on page 15000 in the issue of Correction Thursday, March 28, 2002, make the 47 CFR Part 63 following corrections: In rule document 02–9574 beginning [CC Docket No. 01–150; FCC 02–78] on page 19327 in the issue of Friday, 1. In the third column, under April 19, 2002, make the following ‘‘Description of Relief Sought:’’, in the Implementation of Further corrections: third line ‘‘five’’ should read ‘‘three ’’. Streamlining Measures for Domestic 2. In the same column, also under § 39.13 [Corrected] Section 214 Authorizations ‘‘Description of Relief Sought:’’, in the 1. On page 19329, §39.13, in the table, fifth line ‘‘747’’ should read ‘‘767 ’’. Correction under the column, ‘‘Compliance’’, in the In rule document 02–9101 beginning third paragraph, in the fifth and sixth [FR Doc. C2–7484 Filed 4–30–02; 8:45 am] on page 18827, in the issue of lines, ‘‘(the effective date of AD 2001– BILLING CODE 1505–01–D Wednesday, April 17, 2002, make the 20–154)’’ should read ‘‘(the effective following corrections: date of AD 2001–20–14)’’. 2. On page 19329, §39.13, in the same DEPARTMENT OF TRANSPORTATION § 63.03 [Corrected] table, under the column, ‘‘Procedures’’, 1. On page 18831, in the second in the first paragraph, in the seventh Research and Special Programs column, in § 63.03, ‘‘paragraph (b)(2)i line, ‘‘paragraph (i) of number (P/N) this Administration should read ‘‘(b)(2)(i)’’. AD.’’ should read ‘‘paragraph (i) of this 2. On page 18831, in the same AD.’’. Office of Hazardous Materials Safety; column, in § 63.03, ‘‘paragraph (b)(2)ii’’ 3. On page 19329, in the same section, Notice of Applications for Exemtions should read ‘‘ (b)(2)(ii)’’. in the same table, under the same Correction 3. On page 18831, in the same column, in the third paragraph, in the column, in the same section, paragraph third line, ‘‘226–26–SA226–003’’ should In notice document 02–9413 (b)(2)iii’’ should read ‘‘ (b)(2)(iii)’’. read ‘‘226–26–003’’. beginning on page 19313 in the issue of [FR Doc. C2–9101 Filed 4–30–02; 8:45 am] [FR Doc. C2–9574 Filed 4–30–02; 8:45 am] Thursday, April 18, 2002, the table is BILLING CODE 1505–01–D BILLING CODE 1505–01–D corrected to read as set forth below:
NEW EXEMPTIONS
Application No. Docket No. Applicant Regulation(s) affected Nature of exemption thereof
12966–N ...... Scientific Cylinder Cor- 49 CFR (e)(8), (e)(15)(vi) To authorize the transportation in commerce of poration, Englewood, and (e)(19), DOT–3AL cyclinders manufactured from 6351 CO. 173.34(e)(1), (e)(3), alloy which have been examined by ultrasonic in- (e)(5), (e)(6), (e)(7). spection in lieu of the internal visual test. (modes 1, 2, 3, 4) 22967–N ...... Reilly Industries, Inc., Indi- 49 CFR 172.446, To authorize the transportation in commerce of anapolis, IN. 172.560, 173.213. fused solid coal tar enamel in non-DOT specifica- tion open-top or closed-top sift proof metal pack- agings when the amounts meet or exceed the re- portable quantity. (modes 1, 2, 3) 12969–N ...... Arrowhead Industrial 49 CFR 173.301(h), To authorize the transportation in commerce of non- Services Inc., Graham, 173.302, 173.306(d)(3). DOT specification cyclinders containing Division NC. 2.2 material overpacked in strong outside pack- aging for transporting to remote test sites. (mode 1) 12970–N ...... IMR Corporation Tulsa, 49 CFR 172.202(a)(1) ...... To authorize the transportation in commerce of lim- OK. ited quantities of hazardous material with alter- native shipping name on shipping papers. (mode 1)
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NEW EXEMPTIONS—Continued
Application No. Docket No. Applicant Regulation(s) affected Nature of exemption thereof
12972–N ...... Voltaix, Inc., North 49 CFR 173.301(j) ...... To authorize the transportation in commerce of non- Branch, NJ. DOT specification cylinders for export containing various compressed gases without pressure relief devices. (modes 1, 3) 12978–N ...... Genesis Environmental, 49 CFR 172.101 Col. 8(b) To authorize the transportation in commerce of solid Ltd., McKeesport, PA. & 8(c), 173.197. regulated medical waste in non-DOT specification packaging consisting of a bulk outer packaging and a non-bulk inner packaging. (mode 1) 12979–N ...... Medical Microwave, Inc., 49 CFR 172.101 Col. 8(b) To authorize the transportation in commerce of solid Livington, NJ. & 8(c), 173.197. regulated medical waste in non-DOT specification packaging consisting of a bulk outer packaging and a non-bulk inner packaging. (mode 1) 12982–N ...... Arthur L. Fleener, Ames, 49 CFR 175.320 ...... To authorize the transportation in commerce of Divi- IA. sion 1.1 explosives, which are forbidden for ship- ment by passenger-carrying aircraft to remote areas when no other means of transportation is available. (mode 5)
[FR Doc. C2–9413 Filed 4–30–02; 8:45 am] BILLING CODE 1505–01–D
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Part II
Department of Transportation National Highway Traffic Safety Administration
49 CFR Part 571 Federal Motor Vehicle Safety Standards; Child Restraint Systems; Proposed Rule
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DEPARTMENT OF TRANSPORTATION For legal issues, you may call Deirdre e. National Environmental Policy Act Fujita of the NHTSA Office of Chief f. Executive Order 12778 (Civil Justice National Highway Traffic Safety Counsel, at 202–366–2992. Reform) Administration You may send mail to both of these g. Plain Language h. Paperwork Reduction Act officials at the National Highway Traffic i. National Technology Transfer and 49 CFR Part 571 Safety Administration, 400 Seventh St., Advancement Act SW, Washington, DC, 20590. IX. Submission of Comments [Docket No. NHTSA–02–11707] SUPPLEMENTARY INFORMATION: I. Executive Summary RIN 2127–AI34 Table of Contents This document proposes a number of Federal Motor Vehicle Safety I. Executive Summary revisions to Federal Motor Vehicle II. Background Standards; Child Restraint Systems Safety Standard No. 213, ‘‘Child III. Existing Requirements of Standard No. Restraint Systems’’ (49 CFR 571.213). 213 AGENCY: National Highway Traffic The proposed revisions would Safety Administration (NHTSA), IV. ANPRM on Side Impact Protection V. Agency Proposals incorporate five elements into the Department of Transportation. a. Updated Bench Seat standard: (a) An updated bench seat ACTION: Notice of proposed rulemaking 1. Introduction used to dynamically test add-on child (NPRM). 2. Post-TREAD Rulemaking Support restraint systems; (b) a sled pulse that Program provides a wider test corridor; (c) SUMMARY: This document proposes a 3. Features That Should Be Changed improved child test dummies; (d) number of revisions to the Federal i. Bottom Seat Cushion Angle expanded applicability to child restraint safety standard for child restraint ii. Seat Back Angle systems recommended for use by systems, including proposals for iii. Seat Belt Anchors children weighing up to 65 pounds; and incorporating improved test dummies iv. Fixed Seat Back 4. Features That Need Not Be Changed (e) new or revised injury criteria to and updated procedures used to test i. Bottom Seat Cushion Length assess the dynamic performance of child child restraints, new or revised injury ii. Seat Back Height restraints. This proposal follows up on criteria to assess the dynamic iii. Test Bench Floor the agency’s announcement in its performance of child restraints, and 5. What About Cushion Stiffness? November 2000 Draft Child Restraint extension of the standard to apply it to b. Crash Pulse Systems Safety Plan (Docket NHTSA– child restraints recommended for use by 1. The Current Crash Pulse 7938) that the agency will be children up to 65 pounds. This action 2. The Crash Pulse Is Not Overly Severe undertaking rulemaking on these and is intended to make child restraints 3. Adjusting the Corridors of the Pulse other elements of Standard No. 213 (65 even more effective in protecting c. Improved Child Test Dummies FR 70687; November 27, 2000). The 1. CRABI, Hybrid III Dummies children from the risk of death or i. Replacing Current Dummies proposal is also issued in response to serious injury in motor vehicle crashes. ii. Retaining the Criteria Used to Determine the mandate in the Transportation This proposal is being issued in Which Dummy Is Used in Compliance Recall Enhancement, Accountability response to the Transportation Recall Tests and Documentation Act (the TREAD Enhancement, Accountability and iii. Conditioning the Dummies Act) (November 1, 2000, Pub. L. 106– Documentation Act of 2000, which 2. Using A Weighted 6-Year-Old Dummy 414, 114 Stat. 1800) to initiate a directed NHTSA to initiate a rulemaking i. Development of the 10-Year-Old Dummy rulemaking for the purpose of proceeding for the purpose of improving Is a Long-Term Measure improving the safety of child restraints. the safety of child restraints. ii. A Weighted 6-Year-Old Dummy Is a Section 14(a) of the TREAD Act Feasible Short-Term Alternative DATES: You should submit your mandates that the agency ‘‘initiate a d. Expanding The Applicability Of the rulemaking for the purpose of comments early enough to ensure that Standard to 65 Lb Docket Management receives them not e. New Or Revised Injury Criteria improving the safety of child restraints, later than July 1, 2002. 1. Scaled Injury Criteria including minimizing head injuries i. Head Injury from side impact collisions.’’ Section ADDRESSES: You may submit your A. Should HIC Duration Be Limited To 15 14(b) identifies specific elements that comments in writing to: Docket Milliseconds? the agency must consider in its Management, Room PL–401, 400 B. Test Data rulemaking. The Act gives the agency Seventh Street, SW., Washington, DC, ii. Thoracic Injury substantial discretion over the decision 20590. Alternatively, you may submit A. Chest Acceleration whether to issue a final rule on the your comments electronically by logging B. Chest Deflection specific elements. Section 14(c) onto the Docket Management System C. Weighted 6-Year-Old Dummy specifies that if the agency does not Web site at http://dms.dot.gov. Click on D. Test Data iii. Neck Injury incorporate any element described in ‘‘Help & Information’’ or ‘‘Help/Info’’ to section 14(b) in a final rule, the agency view instructions for filing your iv. Tabulated Data 2. Static Testing Criteria shall explain in a report to Congress the comments electronically. Regardless of VI. Proposed Effective Dates reasons for not incorporating the how you submit your comments, you VII. Child Passenger Safety Plan and Other element in a final rule. should mention the docket number of Issues of the TREAD Act In response to section 14, the agency this document. You may call Docket a. Comments on Possible Rulemaking comprehensively examined possible Management at 202–366–9324. You may b. Rear-Impact Test ways of revising and updating its child visit the Docket from 10:00 a.m. to 5:00 c. Child Restraints in NCAP Tests restraint standard. Today’s proposal is p.m., Monday through Friday. VIII. Rulemaking Analyses and Notices substantially based on a combination of a. Executive Order 12866 (Regulatory FOR FURTHER INFORMATION CONTACT: For Planning and Review) and DOT pre- and post-TREAD Act agency non-legal issues, you may call Mike Regulatory Policies and Procedures activities, including extensive testing of Huntley of the NHTSA Office of b. Regulatory Flexibility Act child restraints and dummies by Crashworthiness Standards, at 202–366– c. Executive Order 13132 (Federalism) NHTSA’s Vehicle Research & Test 0029. d. Unfunded Mandates Reform Act Center and by the agency in its New Car
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Assessment Program, and on The proposed changes to the sled air bag loading. Therefore, the agency is evaluations of vehicle seat assemblies pulse are based on studies conducted in proposing that Nij without limits on and pulses. The proposal is also based response to the TREAD Act. We propose axial force be added to Standard No. on data analysis, as well as agency to widen the test corridor to make it 213. review of existing global research papers easier for more test facilities to NHTSA has examined the benefits and international standards. We have reproduce. The wider corridor extends and costs of these proposed also taken into consideration the pulse from 80 milliseconds (ms) to amendments, wishing to adopt only submissions by the public in response approximately 90 ms in duration. The those amendments that contribute to to the agency’s Safety Plan and sought expanded corridor would not reduce the improved safety, and mindful of the an exchange of ideas with child restraint stringency of the test, and would also principles for regulatory manufacturers as to the research being make it easier to conduct compliance decisionmaking set forth in Executive conducted in response to the TREAD tests at speeds closer to 30 mph. Order 12866, Regulatory Planning and Act, meeting with them in February This document proposes two Review. Its efforts to do so, however, 2001. There are a number of technical initiatives toward enhancing the use of have been limited by several factors. reports in the docket to which this test dummies in the evaluation of child Two factors stand out. One is the NPRM will refer to from time to time in restraints under Standard No. 213. limited time allowed by the schedule support of the proposals. NHTSA proposes to replace some of the specified in the TREAD Act for In an advance notice of proposed existing dummies with the new 12- initiating and completing this rulemaking published concurrently with month-old Child Restraint Air Bag rulemaking. That has limited the today’s document, we are seeking public Interaction (CRABI) dummy, and the amount and variety of information that comments on the agency’s work on state-of-the art Hybrid III 3- and 6-year- the agency could obtain and testing that developing a possible side impact old dummies. NHTSA also proposes the agency could conduct to examine protection standard for child restraint testing child restraints for older children the efficacy of possible countermeasures systems and on possible refinements to with a weighted 6-year-old dummy ( i.e., under consideration and the effects of the approach we have taken thus far. In a Hybrid III 6-year-old dummy to which the various proposed amendments on its review of the child restraint weights have been added). The total child restraint performance. The other is standard, NHTSA placed particular weight of the dummy would be 62 lb. the lack of specific accident data on emphasis on improving the ability of The weighted dummy would be used to children in motor vehicle crashes test child restraints that are generally. For example, there is little child restraints to provide protection in recommended for children weighing 50 available data on neck injury in children side impact crashes. Although we have to 65 lb, and is viewed as an interim involved in motor vehicle crashes. conducted extensive testing and measure until such time as the Hybrid Together, these limitations have made it analysis over the past year aimed at III 10-year-old dummy becomes difficult to assess and compare the providing additional side impact available. benefits and costs of this rulemaking. protection for children in child The proposal to extend Standard No. NHTSA estimates that the proposal to restraints, there are many unknowns. 213 to child restraint systems for use the new and scaled injury criteria of We seek comment on the suitability of children who weigh 65 lb or less is Standard No. 208 would prevent an the test procedures we are considering, based on the proposal to test restraints estimated 3–5 fatalities and 5 MAIS 2– on appropriate injury criteria for recommended for children weighing 5 non-fatal injuries for children ages 0– children in side impacts, on cost over 50 lb with the weighted 6-year-old 1 annually. In addition, the proposal beneficial countermeasures, and on dummy. The availability of that dummy would save 1 fatality and mitigate 1 other issues. The agency anticipates that makes it possible to extend the standard MAIS 2–5 injury in the 4-to 6-year-old comments to the advance notice will and evaluate the performance of the age group annually. The agency does help us assess the benefits and costs of added restraints. not believe that updating the seat a side impact rulemaking, which will The proposal to use the new and assembly and revising the crash pulse help us decide whether to issue a notice scaled injury criteria of Standard No. would affect dummy performance to an of proposed rulemaking in the near 208 is based on research that the agency extent that benefits would accrue from future and/or identify the work that did in the advanced air bag rulemaking, such changes. Research will be needs to be done. as well as NCAP and sled testing done conducted later this year to assess the The proposed updates to the seat in response to the TREAD Act. The effects of such changes on dummy assembly are based on studies that scaled head injury criterion limits from performance. NHTSA contracted to have done in the Standard No. 208 rulemaking are At this time, NHTSA has not response to the TREAD Act. This NPRM proposed herein for Standard No. 213, identified countermeasures to improve proposes the following changes: the seat as well as the chest deflection and child restraint performance in frontal bottom cushion angle would be acceleration limits. The Nij neck tests that would allow child restraint increased from 8 degrees off horizontal criterion would also be added to manufacturers to meet the proposed to 15 degrees; the seat back cushion Standard No. 213, but without the limits neck injury criterion. Consequently, we angle would be increased from 15 on axial force. For Standard No. 208, the were unable to estimate the costs of degrees off the vertical to 22 degrees; the agency originally proposed Nij without such countermeasures. Comments are spacing between the anchors of the lap limits on axial force. However, the requested on possible countermeasures belt would be increased from 222 Alliance of Automotive Manufacturers and their costs. The proposal to use new millimeters (mm) to 392 mm in the persuaded the agency to incorporate dummies in compliance tests, including center seating position and from 356 more conservative axial force limits for testing with a weighted 6-year-old mm to 472 mm in the outboard seating the out-of-position air bag loading dummy, could result in increased positions; and the seat back of the seat environment. 65 FR 30717, 30718; May testing costs for manufacturers that want assembly would be changed, from a 12, 2000. Children in child restraints are to certify their restraints using the tests flexible seat back to one that is fixed, to correctly positioned and not sustaining that NHTSA will use in compliance represent a typical rear seat in a neck injuries such as those associated testing. NHTSA estimates that use of the passenger car. with exposure to severe out-of-position new dummies and other changes to the
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test procedure would add testing costs on the plan and received suggestions on (5) whether to prescribe clearer and of $2.72 million. We believe that those the various initiatives (Docket NHTSA simpler labels and instructions required to be changes would not result in redesign of 7938). placed on child restraints; child restraints. (6) whether to amend Federal Motor Many commenters responded to the Vehicle Safety Standard No. 213 (49 CFR II. Background second of the three strategies, making 571.213) to cover restraints for children suggestions as to how they believed weighing up to 80 pounds; The lack of occupant restraint use by Standard No. 213 should be improved to (7) whether to establish booster seat motorists is a significant factor in most further enhance child restraint performance and structural integrity fatalities resulting from motor vehicle performance. There was general requirements to be dynamically tested in 3- crashes. Of the 31,910 passenger vehicle point lap and shoulder belts; 1 concurrence with the agency’s plan to occupants killed in 2000, over half (55 (8) whether to apply scaled injury criteria undertake rulemaking with regard to the percent) were unrestrained. Forty-three performance levels, including neck injury, five elements included today in this percent of the 1,079 child occupant developed for Federal Motor Vehicle Safety NPRM. There was no objection to the Standard No. 208 to child restraints and fatalities, ages 0 through 10 years old, agency’s then-announced intention to booster seats covered by in [sic] Federal were unrestrained. For child occupants improve side impact protection as a Motor Vehicle Safety Standard No. 213; and less than 5 years old, 36 percent of the measure that would be pursued (9) whether to include [a] child restraint in 529 fatalities were unrestrained. each vehicle crash tested under the New Car Of the 2,938,000 passenger vehicle internationally in concert with other Assessment Program. occupants injured in crashes in 2000, government and industry bodies. (c) Report to Congress. If the Secretary does only 14 percent (409,000) were reported However, it was apparent from the few not incorporate any element described in as unrestrained. The rates are about the comments we received on the subject subsection (b) in the final rule, the Secretary same for child occupants. For children that those commenters considered it to shall explain, in a report to the Senate Committee on Commerce, Science, and ages 0–10 years old, approximately be a long-term project requiring several years of research and development. Transportation and the House of 165,000 were injured in motor vehicle Representatives Committee on Commerce traffic crashes in 2000, and 13 percent After NHTSA completed its draft submitted within 30 days after issuing the (18,800) of these children were plan, but before it published the plan in final rule, specifically why the Secretary did unrestrained. Of the 67,000 child the Federal Register, the TREAD Act not incorporate any such element in the final occupants less than 5 years of age who was enacted on November 1, 2000. rule. were injured, 10 percent (6,500) were Sections 14 of the TREAD Act directed (d) Completion. Notwithstanding any other unrestrained. NHTSA to initiate a rulemaking for the provision of law, the Secretary shall Child restraints are highly effective in purpose of improving the safety of child complete the rulemaking required by reducing the likelihood of death and or restraints by November 1, 2001, and to subsection (a) not later than 24 months after the date of the enactment of this Act. serious injury in motor vehicle crashes. complete it by issuing a final rule or NHTSA estimates (‘‘Revised Estimates taking other action by November 1, Each of the initiatives contemplated of Child Restraint Effectiveness,’’ Hertz, 2002. The relevant provisions in by the TREAD Act as possible upgrades 1996) that for children less than one- Sections 14 are as follows: to Standard No. 213 were included in year-old, a child restraint can reduce the the agency’s plan as possible candidates (a) In General. Not later than 12 months for rulemaking to enhance the risk of fatality by 71 percent when used after the date of enactment of this Act, the in a passenger car and by 58 percent Secretary of Transportation shall initiate a performance of child restraint systems. 2 when used in a pickup truck, van, or rulemaking for the purpose of improving the Notwithstanding the effectiveness of sport utility vehicle (light truck). Child safety of child restraints, including child restraints certified to Standard No. restraint effectiveness for children minimizing head injuries from side impact 213, the thrust of the 5-year plan was to between the ages 1 to 4 years old is 54 collisions. consider possible rulemaking that could percent in passenger cars and 59 percent (b) Elements for Consideration. In the enhance the performance of child in light trucks. rulemaking required by subsection (a), the restraints even further. Enhancements Secretary shall consider— Notwithstanding the effectiveness of were considered in terms of improved (1) whether to require more comprehensive crash protection and in terms of child restraints certified to Standard No. tests for child restraints than the current 213, the agency is continuing to Federal motor vehicle safety standards increased usability of the restraints so examine whether the safety of children requires, including the use of dynamic tests that misuse is reduced. At the same in child restraints can be enhanced even that— time, we believed then, and continue to further. In 2000, 256 child occupants (A) replicate an array of crash conditions, do so now, that in making regulatory under 5 years of age were killed while such as side-impact crashes and rear-impact restrained in child restraints, and crashes; and 1 Standard No. 213 currently requires booster another 34,600 were injured. Today’s (B) reflect the designs of passenger motor seats to be dynamically tested in 3-point (lap and vehicles as of the date of enactment of this shoulder) belts. As such, the agency is taking no NPRM is part of an effort to reduce these Act; action with respect to this provision of the TREAD numbers. (2) whether to require the use of Act. [Footnote added.] 2 On November 27, 2000, we published anthropomorphic test devices that— In addition, Section 14 of the TREAD Act a planning document that defined our (A) represent a greater range of sizes of required an NPRM to establish a child restraint safety rating consumer information program to vision for enhancing child passenger children including the need to require the provide consumers information for use in the safety over the next 5 years (65 FR use of an anthropomorphic test device that is purchase of child restraints. The NPRM was issued 70687). The plan contained our views representative of a ten-year-old child; and on October 29, 2001, and published November 6, on implementing three strategies for (B) are Hybrid III anthropomorphic test 2001 (66 FR 56146, 66 FR 56048). Further, on devices; October 29, 2001, the agency issued an NPRM on enhancing the safety of child occupants Standard No. 213’s labeling and owner’s manual from birth through age 10: increasing (3) whether to require improved protection from head injuries in side-impact and rear- requirements that responds to section 14(b)(5) of the restraint use; improving the impact crashes; Act. 66 FR 55623, November 2, 2001. The Act also performance and testing of child required a study on the use and effectiveness of (4) how to provide consumer information booster seats and a 5-year strategic plan to reduce, restraints; and improving mechanisms on the physical compatibility of child by 25 percent, deaths and injuries caused by failure for providing safety information to the restraints and vehicle seats on a model-by- to use the appropriate booster seat in the 4-to 8- public. The agency requested comments model basis; year-old age group.
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decisions on possible safety 2. To protect the child, limitations are child restraint and presented in an enhancements, the agency must bear in set on the amount of force that can be information booklet that accompanies mind the consumer acceptance of cost exerted on the head and chest of a child the child restraint system. The child increases. test dummy during the dynamic testing. restraint must also provide a special Weighing all these factors, the agency (S5.1.2 of Standard No. 213). To reduce location or compartment on the child has tentatively decided that safety the possibility of injury that child restraint system in which the enhancements are warranted in the occupants in child restraint systems information booklet may be aspects of the child1 restraint standard may incur if they contact vehicle permanently stored, so that the parent discussed below in section IV. interior surfaces during a crash, or other user of the child restraint can limitations are also set on the amount of always have available the necessary III. Existing Requirements of Standard frontal head and knee excursions that safety information (S5.5 of Standard No. No. 213 can be experienced by the test dummy. 213). Standard No. 213 also requires The following discussion summarizes To prevent a child from being ejected each child restraint system to be current provisions in Standard No. 213 from rearward-facing restraints (e.g., accompanied by a postage-paid relating to the performance of child infant restraints), limitations are set on registration form so that purchasers can restraint systems. the amount that such restraints can tip register with the manufacturer and 1. The performance of a child restraint forward (S5.1.4 of Standard No. 213). thereby be directly notified in the event system is evaluated in dynamic tests 3. During dynamic testing, no load- of a safety recall. Manufacturers must involving a 30 mph velocity change, bearing or other structural part of any retain the names and addresses of which is representative of a severe child restraint system may separate so registrants for a period of six years. crash. Each child restraint is tested as to create jagged edges that could cut (S5.8 of Standard No. 213; 49 CFR part while attached to a standardized seat and injure a child. If the child restraint 588). assembly. Restraints are tested while has adjustable positions, it may not shift 8. Each material used in a child attached to the standard seat assembly positions if doing so could potentially restraint system must meet the by various means. The restraint system catch a child’s limbs between the flammability requirements of S4 of is anchored to a test seat with a lap belt shifting parts or allow the child to FMVSS No. 302 (49 CFR 571.302) (S5.7 only, or a lap/shoulder belt if the ‘‘submarine’’ (i.e., allow the child to of Standard No. 213). 9. Beginning September 1, 2002, child restraint system is a booster seat slide down and out of the restraint restraint systems must have components designed for these belts. In another test, during a crash) (S5.1.1 of Standard No. 213). permanently attached to them that will the child restraint is required to meet 4. To prevent injuries to children enable them to be anchored to a new more demanding requirements with during crashes from contact with the child restraint anchorage system that respect to the permissible forward surfaces of the child restraint itself, the will be standard on all new passenger motion of the dummy’s head, which is standard specifies requirements for the vehicles. The vehicle anchorage system typically accomplished by use of a size and shape of those surfaces. In consists of two bars that are at or close tether attached to the top of the child addition, protective padding to the intersection of the vehicle seat restraint. Beginning in 2002, child requirements are set for restraints cushion and seat back, and a top tether restraints will also be subjected to designed for use by infants (S5.2 of anchorage located typically (a) on the frontal crash simulations when Standard No. 213). The standard rear shelf below the rear window in anchored to the test seat assembly by a specifies a minimum surface area for passenger cars, or (b) on the floor or on new child restraint anchorage system those surfaces that support the side of or under the seat structure of sport 3 (49 CFR 571.225). Built-in child seats the child’s torso. Each surface must be utility vehicles and minivans. Child are evaluated by crash testing the flat or concave and have a continuous restraints will still be capable of being vehicle they are built into, or by surface of not less than 24 square inches anchored to the vehicle seat by the simulating a crash with the built-in seat for systems recommended for children vehicle seat belts. dynamically tested with parts of the weighing 20 lb or more, or 48 square 10. Child restraints certified for use in vehicle surrounding it. inches for systems recommended for both motor vehicles and aircraft must children weighing less than 20 lb pass an additional test when attached to 3 Standard No. 225 requires motor vehicle (S5.2.2.1(b)). a representative airplane seat, and manufacturers to provide vehicles equipped with 5. The belts, buckles, and attachment the child restraint anchorage systems that are provide additional information on the standardized and independent of the vehicle seat hardware used in child restraint systems proper use of the restraint system in an belts. The new independent system has two lower have to meet abrasion and corrosion airplane seat (S8 of Standard No. 213). anchorages, and one upper anchorage. Each lower resistance requirements (S5.4.1 and IV. ANPRM on Side Impact Protection anchorage includes a rigid round rod or ‘‘bar’’ unto S5.4.2). Additionally, the belts in child which a hook, a jaw-like buckle or other connector can be snapped. The bars are located at the restraints must adjust to snugly fit In an advance notice of proposed intersection of the vehicle seat cushion and seat occupants, not transfer any crash loads rulemaking (ANPRM) published back. The upper anchorage is a ring-like object to from the vehicle to the child, and must concurrently with today’s NPRM, we are which the upper tether of a child restraint system restrain the child’s upper and lower seeking public comments on the can be attached. (The system is widely known as the ‘‘LATCH system,’’ an acronym developed by torso (S5.4.3 of Standard No. 213). agency’s work on developing a possible manufacturers and retailers for ‘‘lower anchors and 6. The amount of force necessary to side impact protection standard for tether for children.’’) The LATCH system is open belt buckles and release a child child restraint systems and on possible required to be installed at two rear seating from a restraint system is specified so refinements to the approach we have positions. In addition, a tether anchorage is required at a third position. By requiring an easy- that children will not be able to taken thus far. In its review of the child to-use anchorage system that is independent of the unbuckle themselves, but adults will be restraint standard in response to the vehicle seat belts, NHTSA’s standard makes able to do so quickly and easily TREAD Act, NHTSA placed particular possible more effective child restraint installation (S5.4.3.5 and S6 of Standard No. 213). emphasis on improving the ability of and thereby increases child restraint effectiveness and child safety. The standard is estimated to save 7. Information necessary for the child restraints to provide protection in 36 to 50 lives annually, and prevent 1,231 to 2,929 proper use of the child restraint system side impact crashes. Although we have injuries. See 64 FR 10786; March 5, 1999. must be permanently labeled on the conducted extensive testing and
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analysis over the past year aimed at restraint’s true performance in a crash 2001 New Car Assessment Program providing additional side impact can be assessed. However, while to the (NCAP). PAX analyzed the seat protection for children in child extent possible it may be desirable for geometry data, including seat cushion restraints, there are many unknowns. the seat assembly to mirror production angle, seat back angle, seat cushion We seek comment on the suitability of seats, our program work developing and length, seat back length, tether anchor the test procedures we are considering, evaluating the standard seat assembly locations, child restraint anchorage on appropriate injury criteria for was guided by a number of additional system anchor locations, and seat belt children in side impacts, on cost considerations. The seat assembly must locations. A report by PAX on the beneficial countermeasures, and on be durable and must contribute to project is available in the docket. This other issues. The agency anticipates that obtaining repeatable and comparable preamble provides an overview of the comments to the advance notice will test results for child restraints. Meeting results. Readers are referred to the help us assess the benefits and costs of the performance requirements of report for a detailed explanation of the a side impact rulemaking, which will Standard No. 213 on the test seat should methodology used in the test program, help us decide whether to issue a notice ensure that child restraints performed and the results of each parameter, sorted of proposed rulemaking in the near adequately on the variety of different by vehicle class. future and/or identify the work that seats found in cars on the road. In To summarize the report, the research needs to be done. comparison to some vehicle seats, the program analyzed the seat geometries of test seat might present more demanding 35 vehicles. Because of time constraints V. Agency Proposals test conditions, but this was acceptable and the fact that the test for determining a. Updated Bench Seat if the test seat were representative of force/deflection characteristics of the many seats used in vehicles. Differences vehicle seat is a destructive test (that is, 1. Introduction between the standard seat assembly and a section of the seat cushion had to be This NPRM proposes to update the production seats could be disregarded if cut out and removed), the agency standard vehicle seat assembly used in the differences did not affect child utilized vehicles that had previously Standard No. 213’s dynamic testing. The restraint performance on the seat. The undergone testing in the agency’s New original seat assembly was developed in seat assembly did not need to conform Car Assessment Program but whose rear the mid-1970’s by the Highway Safety to non-identical features that were seats had not been destroyed or Research Institute at the University of unlikely to have a confounding effect on discarded. Every attempt was made to Michigan. The bench seat was based on child restraint performance. obtain vehicles from a range of vehicle the configuration and performance These considerations counseled classes for evaluation. Of these vehicles, parameters of the 1974 Chevrolet Impala against changing the seat assembly 19 were passenger cars, 11 were SUVs, production front bench seat. Static and significantly in the past. Child restraints 4 were minivans, and 1 was a pickup dynamic characteristics of the were performing well in the field. The truck. PAX analyzed the various seat production seat were modeled into the few features that we thought could be geometry measurements of the vehicles, frame deformation and foam stiffness of updated, such as the seat assembly’s by seating position (outboard or middle) the standard seat. cushion angle and seat back angle, were and vehicle class, and identified some NHTSA proposes to update the not thought to affect safety sufficiently features of the bench that do not reflect following features of the seat assembly: to warrant use of the agency’s limited current vehicle designs. the seat bottom cushion angle would be resources for that purpose. We were also We have tentatively determined that a increased from 8 degrees off horizontal concerned about possible cost increases number of those features should be to 15 degrees; the seat back cushion to child restraints that might occur as changed, that some others need not be, angle would be increased from 15 some manufacturers passed on the costs and that a few features (e.g., seat degrees off the vertical to 22 degrees; the of possibly having to retest all child cushion stiffness) require further spacing between the anchors of the lap restraints on the market. analysis before we can decide whether belt would be increased from 222 With the passage of section 14(b) of we should change them. Generally, millimeters (mm) to 392 mm in the TREAD, Congress has presented its where there is a notable difference center seating position and from 356 belief that the seat assembly should be between the existing seat assembly and mm to 472 mm in the outboard seating updated to reflect the designs of the fleet, the agency has proposed positions; and the seat back of the seat production seats. We concur with changing the seat assembly to make it assembly would be changed from a considering the issue further. We have more representative of the existing flexible seat back to one that is fixed, to identified a number of features of the vehicle fleet. represent a typical rear seat in a present seat assembly that could be We request comments on the passenger car. Figures 1A, 1B and 1B’ of updated, which are discussed below. proposal, particularly with regard to the Standard No. 213 would be revised to Later this year, NHTSA will undertake latter category. NHTSA will be reflect these changes, as would the an assessment of what effect, if any, the conducting further analyses of some of drawing package of the seat assembly updated seat assembly might have on the proposed changes, since the (SAS–100–1000, with Addendum A, the performance of child restraints. analyses could not be completed in time dated October 23, 1998) that is for this NPRM. Information we obtain incorporated by reference (see 49 CFR 2. Post-TREAD Rulemaking Support will be placed in the docket. Further, 571.5) into the standard. Program later this year, NHTSA will be This proposal is based on evaluations In response to TREAD, NHTSA evaluating dynamically most of the we have made regularly over the years, initiated a test program to assess seat changes that we propose to make to the and most recently this year in response parameters of production seats, working seat bench, to ensure that these changes to the TREAD Act, of the need to update with Veridian Engineering (Veridian) do not result in compromising the safety or improve the seat assembly used for and the U.S. Naval Air Warfare Center currently afforded by child restraints. testing child restraints. There is no Aircraft Division at Patuxent River, Results of this testing will be compared question that the seat assembly should Maryland (PAX). Veridian gathered to compliance test data of existing child be representative of production seats to information on geometry and stiffness of restraints to evaluate the effect of the the extent possible so that a child seats of vehicles tested in NHTSA’s changes. Comparison of these tests will
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aid in the agency’s decision regarding ii. Seat Back Angle iv. Fixed Seat Back whether to adopt the proposed changes NHTSA proposes that the seat back of in a final rule. Currently, the seat assembly has a seat back angle of 15° off vertical. Seventy- the seat assembly be changed to represent a fixed vehicle seat. Steel rods 3. Features That Should Be Changed eight seat back angle measurements of should replace the existing aluminum rear seats in the 35 vehicles surveyed i. Bottom Seat Cushion Angle rods. A fixed seat back will be more were taken from either the outboard or Currently, the seat assembly has a seat representative of the rear seat of today’s pan angle of 8° off horizontal. In the 35 center seat position, or, if available, the passenger cars, and would harmonize vehicles surveyed, 77 seat pan angle third seating position. From this with ECE regulations. Because NHTSA measurements were made of rear seats, analysis, the average seat back angle for ° strongly recommends that children from either the outboard position or the all measurements taken is 22 off of ° under the age of twelve ride in the back center position, or if the vehicle had a vertical. This is an increase of 7 over seat, changing the seat assembly to third seating position, from that position the current angle specified for the represent a typical rear seat seems as well. PAX found that 39% of the seat FMVSS No. 213 seat assembly. Forty- appropriate. However, vans and pan angle measurements were within four percent of all the measurements multipurpose vehicles with multiple 16° to 20° off horizontal and 35% of the taken yielded seat back angles between seating rows may be more closely seat pan angle measurements fell within 21° and 25°. For these reasons, NHTSA represented by a flexible seat back. 11° to 15° of horizontal. The test data proposes increasing the angle to 22°. Comments are requested on this issue. show an average seat pan angle of 15.5°. NHTSA is currently evaluating the iii. Seat Belt Anchors We have tentatively decided that the effect of the change on child restraint seat pan angle of the seat assembly The current seat assembly has a performance by use of MADYMO should be increased to 15° off simulations, and will further study the ° lateral spacing of 222 mm between the horizontal. A 15 angle would be in lap belt anchors in the center seating effect of flexible versus rigid seat backs accordance with the bottom seat position, and a lateral spacing of 500 through sled testing to be performed cushion angle specified by ECE mm for the outboard seating positions. later this year. Regulation 44. Based on the evaluation of the 35 Comments are requested on the effect 4. Features That Need Not Be Changed vehicles surveyed, the average lap belt of this change on the performance of NHTSA has tentatively decided that anchor spacing in center seating child restraints in actual vehicles. In a the following features of the bench seat positions in the modern vehicle fleet is September 18, 2000 petition for need not be changed because they either rulemaking, Ford Motor Company 392 mm. Thirty-nine percent of the reflect the design of production seats or indicated that using the ECE Regulation measurements taken for the center are different but that difference is 44 seat cushion angle would solve a seating position fell in the range of 351 deemed not to have an effect on child problem it has found using the present mm to 400 mm, while 63 percent of the restraint performance in dynamic seat assembly to test ‘‘rear-facing child measurements were between 301 mm testing. Comments are requested on restraint systems (CRS) equipped with and 400 mm. As such, the current seat these features. rigid Lower Anchors and Tethers for assembly represents a distance that is i. Bottom Seat Cushion Length Children (LATCH) system attachments.’’ 170 mm smaller than that of the current Under Standard No. 213, child restraints vehicle fleet. We propose increasing the Currently, the seat assembly has a may use rigid attachments to connect to spacing to 392 mm for the center seating bottom seat cushion length of 508 mm. the lower anchorage bars of LATCH position to represent the average of the In order to find the average bottom seat systems, or may use non-rigid current vehicle fleet. Based on the cushion length, 78 measurements were attachments (such as those attached to evaluation of the 35 vehicles surveyed, taken in the 35 vehicles surveyed. the child restraint by webbing material). the average lap belt anchor spacing in Analysis depicts the average seat pan Ford believed that the seat cushion the outboard seating positions is 472 length as 461 mm. The average bottom angle of the seat assembly is driving the mm, as compared to 500 mm on the seat cushion length for 64% of the design of rear-facing child restraints. current Standard No. 213 standard seat measurements was found to lie within Because the current seat assembly is assembly. Thirty-three percent of the the range of 451 mm to 500 mm. flatter than actual vehicle seats, when measurements taken were greater than Therefore, the current FMVSS No. 213 infant restraints are installed on actual 500 mm, while 90 percent were above seat assembly has a seat pan length that vehicle seats, the restraints are installed 400 mm. As the average anchorage is about 50 mm longer than the average at an overly steep angle. Ford stated that spacing for outboard seating positions in seat pan length observed in today’s the overly steep angle can be corrected the modern vehicle fleet is 28 mm less vehicle fleet. We do not believe that this in conventional restraints by tipping the than that on the current standard seat difference is consequential, as the restraint back and placing a rolled towel assembly, we propose to change the reduced seat cushion length does not under the base, near the seat bight. spacing to 472 mm to more accurately cause an incompatibility with existing However, an infant restraint with rigid represent actual vehicles. Comments are child restraint designs. LATCH attachments will not have any requested on how changing the spacing ii. Seat Back Height flexibility that will allow it to be tipped will affect the performance of a child Currently, the 213 seat assembly has backwards while remaining connected restraint in dynamic tests. to the lower anchorage bars. To solve a seat back height of 610 mm. In the 35 vehicles surveyed, 78 measurements of this problem, Ford suggested using the of the petition does not mean that the changes ECE Regulation 44 seat assembly, which requested will be adopted. Granting of the petition the height of the seat back were made has a 15° bottom seat cushion angle, indicates that the agency believes that the in both the outboard and center modified to have the LATCH anchorage recommended change has merit and warrants positions. These data yield an average 4 further review and evaluation. A decision whether seat back height of 619 mm. The highest bars included in the assembly. to adopt the recommended change will be made on the basis of all available information developed in percentage of seat back length 4 The petition is granted to the extent it is the course of the rulemaking proceeding, in measurements fell within the range of consistent with today’s NPRM. However, granting accordance with statutory criteria. 601 mm to 700 mm. This percentage
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represented 64% of the vehicle dummy response of the Standard No. change in the sled’s velocity over time. measurements. Because the Standard 213 seat cushion, a representative The severity of a crash pulse is a No. 213 seat assembly is only 9 mm cushion that was softer, and a stiff function of its onset rate, peak g and its lower than the average seat back height cushion. The dummy response time of occurrence, and duration. The observed in today’s fleet, we do not see differences were not sufficiently large or standard has a relatively severe crash a need to propose to raise the height of consistent to warrant specifying a pulse, in that the sled is accelerated the seat back. different cushion than the foam used in relatively quickly to an acceleration of Standard No. 213. Thus, the Standard approximately 24 g’s (24 times the force iii. Test Bench Floor No. 213 cushion was considered to be of gravity) and maintains the 24 g level In response to the agency’s draft Child ‘‘representative’’ of the rear seats of then for a relatively long time period (37 to Protection System Safety Plan, Ford current cars. 42 msec) before returning to zero recommended that the standardized We are interested in increasing the acceleration. bench seat should have a floor (see stiffness of the cushion, but are Pulses can vary as to their shape, Docket 7938–20). Ford believed that the uncertain what, if any, differences will onset rate, peak acceleration, and current test seat assembly cannot be seen in dynamic testing. We request duration. NHTSA’s research in the mid- evaluate a rear-facing child restraint that comments on what the stiffness should 1990’s showed that Standard No. 213’s is equipped with a support leg, as has be. Comments are also requested on pulse was more severe than the ‘‘average been developed and is currently used in what effect changing the test seat car’’ pulse of 1988–1991. Crash pulses other countries. We are declining to add stiffness would have on child restraint obtained from Standard No. 208 vehicle a floor to the test assembly at this time, performance in dynamic testing. crash tests indicated a peak G occurring much later in the crash event compared since Standard No. 213 does not allow b. Crash Pulse support legs in compliance testing. to Standard No. 213 and a longer pulse Under Standard No. 213, rear-facing This NPRM would slightly revise the duration. The upper limit of the restraints are only to be attached to the Standard No. 213 pulse. We propose to Standard No. 208 pulse ended at 135 seat assembly via the lap belt or the extend the pulse to approximately 90 msec, compared to 81 msec for the anchorages of the LATCH system. As milliseconds (msec), and to widen the Standard No. 213 pulse. such, the inclusion of a floor structure test corridor to make it easier for more Since the mid-1970’s, vehicle front on the Standard No. 213 standard seat test facilities to reproduce it. The ends of passenger cars have become assembly is not necessary at this time. expanded corridor would not reduce the softer, allowing for more front-end crush stringency of the test, and would also to take place. This results in crash 5. What About Cushion Stiffness? make it easier to conduct compliance pulses that are much longer in duration Comments are requested on whether tests at speeds closer to 30 mph. We than car crash pulses of 30 years ago. the seat assembly’s cushion should be found in studying vehicle crash pulses Current cars have crash pulses that are made stiffer. PAX found the average that the Standard No. 213 pulse is more generally longer in duration than that of stiffness of the Standard No. 213 seat severe than most other pulses, but is Standard No. 213. The peak G’s are assembly to be marginally softer than similar to crash pulses of large sport similar, so the longer duration means most, but not all new vehicles on the utility vehicles and light trucks— that the average model year 2001 road today. The force deflection curves passenger vehicles that are becoming passenger car has a less severe pulse 7 generated by PAX show that the current more and more popular for use as family than the standard. Because of these Standard No. 213 seat cushion is softer vehicles—and very similar to the crash changes in car design, we have been at both the fore and aft outboard pulse of small school buses. asked to reconsider the crash pulse in Standard No. 213 to ensure that it is positions than almost all seat cushions 1. The Current Crash Pulse in vehicles of the modern fleet. As part representative of the crash pulses of In Standard No. 213’s dynamic sled of the work performed in 1988 to today’s vehicles. See, e.g., Ford’s test, a test dummy is secured in a child reexamine the Standard No. 213 comment on NHTSA’s draft Child restraint, which in turn is attached to a procedures,5 Restraint Systems Safety Plan, docket the stiffness characteristics representative vehicle bench seat (seat of the Standard No. 213 seat cushion 7938–20. assembly). The assembly is then We have also been asked to re- material were compared with the subjected to acceleration to simulate a examine the crash pulse because it is characteristics of then current model vehicle crash. The child restraint must difficult to duplicate due to the narrow vehicle seats. Static force versus manage the force from the simulated corridors in the laboratory test deflection tests were conducted on the crash so that the forces imparted to the procedure. Very few labs are able to Standard No. 213 seat cushion foams, dummy are within tolerable limits. The replicate the 213 pulse. Transportation and these curves were then compared force imposed on the child restraint and Research Center (TRC), a testing with similar curves that had been dummy is a function of the acceleration laboratory, submitted a petition to developed for ten vehicles which had onset rate, peak, and duration. NHTSA on October 6, 1999, which we been measured in a separate project in Paragraph S6.1.1(b)(1) of Standard No. 1987. The distribution of force versus 213 specifies that when child restraints 7 FMVSS No. 213’s pulse is quite different than deflection curves found in that are tested in the 48 km/h (30 mph) any other pulse used to regulate child restraints. The Europeans, the Canadians and the Australians evaluation closely parallel those found dynamic test, the acceleration of the test by PAX, in that most vehicle seats were all use different crash pulses to test their child platform must be entirely within the restraints. The FMVSS No. 213 pulse seems to be stiffer than the Standard No. 213 seat curve shown in Figure 2 of the more severe than the other pulses because of its assembly, but there was at least one standard.6 ‘‘Crash pulse’’ refers to the sharp rise time and the short duration of the crash vehicle seat that was softer. Sled tests pulse. Of these three international pulses, the only were performed in 1988 to compare the similarity between the three was the time duration. 6 Our laboratory test procedure (TP) for Standard All other pulses used to regulate child restraints, 213 (TP–213–04, September 1, 1997), specifies a except FMVSS No. 213, ended beyond 100 msec. 5 Hiltner, Edward C. and MacLaughlin, Thomas ‘‘tolerance band,’’ or ‘‘acceleration function The U.S. has about 10 times the LTV sales as F., ‘‘Child Seating Test Procedure Development,’’ envelope,’’ that incorporates the upper limit of Europe (50 percent versus 5 percent). In Australia, NHTSA Final Report No. DOT HS 807 466, March Figure 2 and that also sets a lower limit (see section LTV sales constitute about 25 percent of the total 1989. D.3.3, ‘‘Impact Severity’’ (page 53)). vehicles sold in that country.
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granted, regarding the pulse corridor response for air bag restraint systems. In The Society of Automotive Engineers specified in the laboratory test that rulemaking, NHTSA determined (SAE) Recommended Practice for procedure for Standard No. 213. Due to that it is impractical for that test to have electronic processing of vehicle crash features of the TRC sled and others of time zero at 0.0 g acceleration, because test acceleration data, as given in SAE its type generally (HYGE), TRC stated of the time lag between initial J211, is Channel Frequency Class 60. that there is a problem with achieving movement of the sled and significant Filtered at SAE J211 Class 60 (100 Hz the acceleration curve specified in the acceleration. The agency decided that cutoff frequency), the average car pulse standard and suggested that the pulse the start of the sled test will be had a peak acceleration of 24 g’s at 70 can be slightly revised, by manipulating determined by a specific acceleration msec and pulse duration of time zero, to accommodate HYGE sleds level for the sled which corresponds to approximately 115 msec. When this without affecting test results. a time at which the most rapid pulse was overlaid with the Standard Standard No. 213 specifies that, when acceleration begins, at about 0.5 g’s (63 No. 213 pulse, the 213 pulse enclosed testing child restraints in the 48 km/h FR at 71393). Similarly, TRC would like no portion of the average car curve. The test, the acceleration of the test platform NHTSA to revise its pulse envelope average car had an initial slope similar must be entirely within a specified specifications for child restraint testing to FMVSS No. 213, but then the vehicle curve. The curve begins at zero g’s and to allow a small deviance at time zero began to crush before stiffening up zero time. TRC stated that its HYGE sled ‘‘so that * * * sleds [similar to TRC’s] again. For vans, the average van pulse is generally unable to produce the may defendably participate in had a peak acceleration of 22 g’s at 42 required acceleration curve. The sled certification and compliance testing.’’ msec and pulse duration of 140 msec. ‘‘fires’’ by cracking a seal between a Both the van pulse and the 213 pulse high pressure chamber and a low 2. The Crash Pulse Is Not Overly Severe had almost identical rise times, but then pressure chamber, with the flow of gas after 10 msec, the van pulse began to Following passage of the TREAD Act, (around a metering pin, which controls behave like the car pulse. However, NHTSA had PAX analyze the crash acceleration curve shapes) from high small portions of the van pulse were pulses of over 150 vehicles tested under pressure to low pressure providing the enclosed by the 213 pulse corridor. FMVSS No. 208 and under the agency’s acceleration force. TRC explained that With SUV’s, the average SUV pulse frontal New Car Assessment Program initially, the area available for gas flow had a peak acceleration of 26 g’s at 27 (NCAP). Based on the analysis of model is small, and a short amount of time is msec and a pulse duration of 113 msec. year (MY) 1995 to MY 2000 vehicles, required for pressure to build enough to When the SUV pulse was overlaid with PAX found that the current pulse in cause significant acceleration. Because 8 the 213 corridor, the time of peak G for there is a lag time between initiation of Standard No. 213 was more severe the SUV pulse was very similar to the the test and appreciable acceleration of than that of most passenger vehicles in 213 pulse, which peaks at 20 msec, and the sled, when the curve begins at zero today’s fleet, but was similar to the the rise time between the two pulses g’s and zero time, a significant portion pulses of truck and truck-like was also very similar. Portions of the of the curve is not within the tolerance multipurpose passenger vehicles (i.e., SUV pulse fell within the 213 corridor band required by the present test large sport utility vehicles, SUVs) in a number of times. procedure. When time zero is Standard No. 208 tests, except that the For pick-up trucks, the average truck manipulated so that the initial truck pulse was much longer in pulse had a peak acceleration of 26 g’s acceleration pulse falls within the zero duration than the Standard No. 213 at 24 msec and a pulse duration of 114 to 10 millisecond envelope, and the pulse. A report by PAX on the research msec. When the truck pulse was acceleration at time zero is 1.25 g’s, the project is available in the docket. overlaid with the 213 corridor, there required tolerance band is achieved. To summarize the report, PAX were many similarities. Not only did the We have determined that TRC’s obtained ‘‘average’’ crash pulses from two curves peak at almost the same time petition merits consideration. In the FMVSS No. 208 vehicle crash tests but the rise time was very similar. Also, December 1998, NHTSA issued a final and NCAP tests. To obtain average for the first 65 msec, the truck pulse fell rule amending the sled test requirement NCAP and FMVSS No. 208 pulses, 59 within the corridors of 213 many times. in Standard 208, ‘‘Occupant Crash vehicles were separated into 4 classes: Although the duration of the pulse was Protection,’’ by, among other things, Cars, SUV’s, trucks, and vans. The different, the truck pulse and the 213 revising how time zero is defined (63 FR pulses were then filtered, and the peak pulse appeared to be very similar. 71390, December 28, 1998). The sled velocity, peak G, and duration of the A summary of the PAX findings are test in that standard tests occupant crash pulse were recorded. set forth in Table 4.
TABLE 4.—SUMMARY OF PAX PULSE DATA FILTERED AT SAE CLASS 60 (100 HZ)
Time (msec) Pulse type Peak G ∆V (kph) Duration Peak G
Average Passenger Car ...... 24 115 31 55 Average SUV ...... 26 113 35 52 Average Truck ...... 29 114 39 52 Average Van ...... 22 140 26 54 FMVSS No. 213 ...... 21 81 20 48
8 A more severe crash pulse is defined as one having a higher acceleration onset rate, higher peak acceleration, and/or a shorter time duration.
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Based on this information, we have have structural degradation in a crash, Typically, a delta v of 33 mph is seen decided not to reduce the severity of and will limit forces to the head, neck, in a 30 mph rigid wall test required for Standard No. 213’s crash pulse. PAX and torso to tolerable levels, no matter adult protection in Standard No. 208. found that the current crash pulse is the vehicle the child is in. 3. Adjusting the Corridors of the Pulse very similar to the pulse of light trucks, The agency is seeking comment on SUVs and small school buses in whether a more severe crash pulse We are proposing minor revisions to acceleration onset rate and peak should be established for testing child the crash pulse. We would extend it to magnitude. restraint systems. Comments are sought approximately 90 msec, and would Figures 2, 3 and 4 plot acceleration on the trapezoidal-shaped corridor widen the test corridor so that several curves of SUVs, trucks, and a small proposed, and on the parameters that testing facilities can satisfactorily school bus. These plots show that the determine the level of severity of a pulse reproduce the FMVSS No. 213 crash existing Standard No. 213 pulse corridor for child restraint systems. Does the pulse (see figure 5). The expanded closely represents pulses of these trapezoidal-shaped corridor provide a corridor would not sacrifice the vehicles. As shown in the figures, the sufficient representation of the current stringency of the current pulse. The first 70 msec represents several modern vehicle fleet, or are there other pulse proposal would ensure the rapid rise as day vehicles used to transport children. shapes that would be more is currently in the standard but also Increasingly, light trucks, SUVs and representative and/or more severe? accommodate small deviations at time small school buses are being used to The agency is also seeking comment zero as requested by the TRC petition. transport children in child restraints. as to whether the total change of The change in the boundary of the Based on these findings, we conclude velocity of the current Standard No. 213 corridor would provide laboratories the that the stringency of the FMVSS No. pulse (delta v = 30 mph) should be flexibility to generate a pulse that would ∆ 213 crash pulse is justified to better increased to 33 mph to be equivalent to be closer to a V = 30 mph. ensure that each child restraint will not a 30 mph crash into a rigid barrier. BILLING CODE 4910–59–P
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BILLING CODE 4910–59–C restraints to evaluate the effect of the Child restraint systems must be NHTSA proposes that the sled pulse changes. Comparison of these tests will certified as meeting Standard No. 213’s for Standard No. 213 (see figure 5, aid in the agency’s decision as to requirements when dynamically tested above) should have the coordinates whether the proposed changes should with test dummies that represent given in the following table 5: be adopted in a final rule. children of different ages. The current dummies used in Standard No. 213 c. Improved Child Test Dummies TABLE 5.—PROPOSED SLED PULSE compliance testing are the COORDINATES This document proposes two uninstrumented newborn infant, the initiatives toward enhancing the use of uninstrumented 9-month-old infant, and Point Time Acceleration test dummies in the evaluation of child the Hybrid II 3- and 6-year-old Upper Bound restraints under Standard No. 213. dummies. NHTSA selects which test NHTSA proposes to replace some of the dummy to use based on the mass of the A ...... 0 3 existing dummies with improved children for whom the manufacturer B ...... 10 25 dummies representing children of recommends for the child restraint. C ...... 52 25 approximately the same age as the Table 6 sets forth which dummies are D ...... 90 0 replaced dummies. NHTSA also used to test child restraints based on the proposes testing child restraints for mass recommendations established for Lower Bound older children by using a weighted 6- the restraint by the manufacturer. If a E ...... 4 0 year-old dummy (i.e., a dummy to child restraint were recommended for a F ...... 13 19 which weights have been added). The range of children whose mass overlaps, G ...... 46 19 total weight of the dummy would be 62 in whole or in part, two or more of the H ...... 75 0 lb. The weighted dummy would be used mass ranges in the table, the restraint is to test child restraints that are tested with the dummies specified for NHTSA will be further evaluating the recommended for children weighing 50 each of those ranges. Thus, for example, proposed changes. Sled tests using the to 65 lb. (This NPRM also proposes if a child restraint were recommended proposed crash pulse will be conducted expanding the applicability of Standard for children having masses greater than later this year, and the information we No. 213 to restraint systems 13 kg and up to 20kg, it would be tested obtain will be placed in the docket. recommended for use by children with the 9-month-old dummy, the 3- Results of this testing will be compared weighing up to 65 lb. See section IV(e) year-old dummy and the 6-year-old to compliance test data of existing child of this preamble.) dummy.
TABLE 6.—USE OF CURRENT DUMMIES
Recommended mass range (kilograms) Dummy(ies) currently used in compliance testing
Not greater than 5 kg (0 to 11 lb) ...... Newborn. Greater than 5 but not greater than 10 kg (11 to 22 lb) ...... Newborn, 9-month-old. Greater than 10 but not greater than 18 kg (22 to 40 lb) ...... 9-month-old, Hybrid II 3- year-old. Greater than 18 (40 to 50 lb) ...... Hybrid II 6- year-old.
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1. CRABI, Hybrid III Dummies reliability and repeatability of the test (Hybrid II dummies) were identified, i. Replacing Current Dummies dummies were discussed in the final and the Hybrid III and CRABI dummies rules incorporating the dummies into were seated in various CRS and vehicle The first initiative is a proposal to Part 572. See, final rules for the CRABI belt configurations in order to establish replace three of the test dummies now (65 FR 17188; March 31, 2000); Hybrid a full complement of tests with both the used in Standard No. 213 compliance III 3-year-old (65 FR 15254; March 22, Hybrid II and Hybrid III dummies. tests with new test dummies. The 2000); Hybrid III 6-year-old dummy (65 Where needed, additional sled tests design and performance criteria for the FR 2065; January 13, 2000). The CRABI were performed with the Hybrid II new dummies were incorporated into dummy is instrumented with head, neck dummies. HIC, chest acceleration, and NHTSA’s regulation for and chest accelerometers, while the 9- head and knee excursion values were anthropomorphic test devices, 49 CFR month-old dummy is not. The Hybrid III compared between the Hybrid II and part 572, by rulemaking actions child dummies have a broader selection Hybrid III dummies for each age group. concluded last year. The new dummies of instruments to assess the injury Test results indicate similar are the Child Restraint Air Bag potential to child occupants, including performance between the Hybrid II and Interaction (CRABI) 12-month-old infant a multi-segmented neck, multi-rib Hybrid III child dummy families. See, dummy (Part 572, Subpart R), the thorax and abdominal load monitors, ‘‘A Comparative Evaluation of the Hybrid III 3-year-old child dummy while the Hybrid II dummies have Hybrid II and Hybrid III Child Dummy (Subpart P), and the Hybrid III 6-year- limited biofidelity in the neck area and Families,’’ a copy of which has been old child dummy (Subpart N). The are not instrumented to measure neck placed in the docket. Nonetheless, dummies are used in compliance tests injury. Because of their superior replacing the Hybrid II 3- and 6-year-old that the agency adopted last year for instrumentation, the CRABI dummy and dummies with their Hybrid III testing advanced air bag systems under the Hybrid III child dummies can counterparts would enhance safety by Standard No. 208, ‘‘Occupant Crash provide a fuller evaluation of the the latter’s greater instrumentation Protection.’’ We would retain the performance of child restraint systems capabilities and improved biofidelity, newborn infant dummy in Standard No. in protecting young children. and by the adoption of injury criteria 213’s compliance tests, but would that the Hybrid II dummies cannot replace the 9-month-old dummy (Part Simply substituting the dummies for measure. This NPRM proposes new 572, Subpart J) with the CRABI.9 We the existing ones might not, in itself, injury criteria of that sort, which are would replace the Hybrid II 3- and 6- affect child restraint performance. There year-old dummies with their Hybrid III does not seem to be a significant discussed in section V (f), infra. (HIII) counterparts. Thus, just as in the difference between the Hybrid II and ii. Retaining the Criteria Used To protocol today under Standard No. 213, Hybrid III dummies in their ability to Determine Which Dummy Is Used in there would be four child test dummies measure head and chest accelerations or Compliance Tests used for compliance testing. in dummy kinematics relevant to head The new dummies were incorporated and knee excursions. A series of frontal, NHTSA proposes to retain the criteria into Part 572 because they comprise a Standard No. 213 sled tests were that are used to determine which new generation of test dummies that are conducted to evaluate the equivalency dummy is used in Standard No. 213’s more representative of human children between the Hybrid II child dummies compliance test. Table 7 sets forth the than their Hybrid II counterparts, and currently used in the standard with the dummies that would be used to test allow for the assessment of the potential CRABI dummy and the Hybrid III 3- and child restraints, based on the mass of for more types of injuries in motor 6-year-old dummies. Results from the children for whom the restraint is vehicle crashes. The biofidelity, previously performed compliance tests recommended.
TABLE 7.—PROPOSED USE OF NEW DUMMIES
Dummy(ies) currently used in compliance Recommended mass range (kilograms) testing Dummies proposed for use
Not greater than 5 kg (0 to 11 lb) ...... Newborn ...... Newborn. Greater than 5 but not greater than 10 kg (11 Newborn, 9-month-old ...... Newborn, CRABI. to 22 lb). Greater than 10 but not greater than 18 kg (22 9-month-old, 3-year-old ...... CRABI, HIII 3-year-old. to 40 lb). Greater than 18 kg but not greater than 22.7 kg 6-year-old ...... HIII 6-year-old. (40 to 50 lb). Greater than 22.7 kg (Over 50 lb) ...... Weighted HIII 6-year-old.
Comments are requested on the merits restraint recommended for infants. representing a 12-month-old. Thus, of replacing the existing dummies with Comments are requested on whether the retaining the 9-month-old in compliance the three new ones. The agency has 9-month-old dummy would still be testing might increase the scrutiny of tentatively decided that it would no needed to test child restraints, and if so, the standard of infant restraints, which longer use the 9-month-old dummy which restraints should be tested with argues for continued use of the dummy (which weighs 20 lb) to test child that dummy. The 9-month-old dummy in compliance tests (although there restraints because the newborn and the better represents a 9-month-old child would be costs associated with such CRABI (22 lb) appear sufficient to than the CRABI, since the CRABI is use). Also, some rear-facing infant car evaluate the performance of a child slightly more massive as a device seats/carriers that are designed with a
9 Britax Child Safety Inc. submitted a petition for manufacturers to specify use of the CRABI in dummy. To the extent the petition is consistent rulemaking on September 22, 2000, to allow compliance testing in place of the 9-month-old with this NPRM, it is granted.
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handle for toting the infant outside of with the CRABI (22 lb) dummy, and not significant need for the dummy. The the vehicle are recommended for use with the 9-month-old (20 lb) dummy, dummy would be used in tests of with infants weighing only up to 20 lb. even though the 9-month-old dummy is convertible10 restraints that are Even though the CRABI (at 22 lb) is closer in weight/mass to the lower end recommended for use in the rear-facing heavier than the children recommended of the recommended weight range for configuration by children weighing over for those restraints, we tentatively the restraint. The difference in stature 22 lb. As noted above, restraints that are conclude that the CRABI can and between the 9-month-old and the 12- recommended for use by children over should be used in compliance tests of month-old CRABI is nominal—the 9- 22 lb (and less than 40 lb) are subject these restraints because it is month-old is 27.9 inches tall, while the to testing with the Hybrid II 3-year-old instrumented and the 9-month-old (20 12-month-old CRABI is 29.4 inches tall (33 lb) dummy. Virtually all convertible lb) dummy is not. Do all infant car seat/ (the sitting heights are 17.7 inches and restraints currently on the market are carriers have back supports that are high 18.3 inches, respectively). As such, both certified rear-facing for up to at least 30 enough to support the CRABI? dummies will likely provide nearly lb, and often to 35 or 40 lb. The 3-year- Relatedly, the agency’s policy has identical measures of the possibility for old dummy therefore is more been, to the extent possible, to test each ejection. Comments are requested on representative of children at the upper child restraint with dummies that are at this issue. end of the recommended weight ranges the ends of the weight range of children Comments are requested on whether for these restraints than the 18-month- for whom the restraint is recommended. there is a need to specify in Part 572 a The smaller of the two dummies with test dummy representing an 18-month- old dummy. which we test child restraints is used for old child. Transport Canada has The height recommendations would assessing the potential for ejection, evaluated an 18-month-old CRABI child not change. The 850 mm height while the larger dummy is used for dummy that weighs 25 lb. However, criterion was originally based on the assessing structural integrity. Be that as because NHTSA has not evaluated the 95th percentile 1-year-old and not the 9- it may, we would test a child restraint dummy, we have not assessed whether month-old, so the substitution of the that is recommended for use by children it should be used in compliance testing. CRABI 12-month-old for the 9-month weighing 20 to 40 lb forward-facing There also does not appear to be a does not require a change.
TABLE 8.—DUMMY SELECTION BASED ON HEIGHT RECOMMENDATIONS
Dummy(ies) currently used in compliance Recommended height range (kilograms) testing Dummies proposed for use
Not greater than 650 mm ...... Newborn ...... Newborn. Greater than 650 mm but not greater than 850 Newborn, 9-month-old ...... Newborn, CRABI. mm. Greater than 850 mm but not greater than 1100 9-month-old, HII 3-year-old ...... CRABI, HIII 3-year-old. mm. Greater than 1100 mm ...... HII 6-year-old ...... HIII 6-year-old.
iii. Conditioning the Dummies sneakers for the 3-year-old dummy and degrees C) for at least 4 hours prior to 1 This document proposes detailed size 12 ⁄2 M sneakers for the 6-year-old a test. This would ensure that each descriptions of the clothing, dummy with rubber toe caps, uppers of dummy is conditioned in a manner that conditioning and positioning Dacron and cotton or nylon and a total is consistent with the provisions procedures for the dummies to ensure mass of 0.453 kg. No such specifications specified in Part 572 for each dummy that the test conditions are carefully are in Part 572. As such, we propose and its specific subassemblies. The controlled. that S9.1(c) Standard No. 213 maintain dummy positioning requirements in S10 Clothing for the 12-month-old CRABI the specification of footwear for the of Standard No. 213 would remain and the Hybrid III 3- and 6-year-old Hybrid III 3- and 6-year-old dummies. essentially unchanged. We note that dummies is currently specified in the The clothing and footwear for the S10.2.1(a) of Standard No. 213, which corresponding sections of Part 572 that weighted 6-year-old dummy (see section specifies rotating the legs of the 9- identify the design and performance V.d.2, infra) would be the same as that month-old dummy prior to placement of criteria for each dummy. (Clothing is specified in Part 572 for the Hybrid III the dummy in a child restraint, is not described in § 572.154(c)(2) of Part 572 6-year-old dummy. needed for the CRABI 12-month-old for the CRABI 12-month-old; in The conditioning specifications dummy because of the spinal structure 11 § 572.144(c)(1) for the Hybrid III 3-year- specified in S9.3 of Standard No. 213 of the CRABI dummy. old; and in § 572.124(c)(2) for the would be revised to reflect the same pre- 2. Using a Weighted 6-Year-Old Dummy Hybrid III 6-year-old.) It is proposed that test conditioning procedures that are the clothing specified in Part 572 for currently specified in Standard No. 208 The second initiative relates to each dummy be used in the Standard for the CRABI 12-month-old and the enhancing the dynamic evaluation of No. 213 compliance test, except with Hybrid III 3- and 6-year-old dummies. child restraints that are designed for respect to the identification of Namely, each dummy would be older children. This NPRM proposes to appropriate footwear. S9.1(c) of maintained at a temperature between 69 use a weighted Hybrid III 6-year-old Standard No. 213 prescribes size 7M and 72 degrees F (between 20.6 and 22.2 dummy to test child restraints that are
10 A convertible child restraint can be used rear- 11 The proposed regulatory text of this NPRM tests until the mandatory compliance date of a final facing with infants and young toddlers, and retains the specifications in Standard No. 213 for rule (which is proposed to be November 1, 2004). forward-facing with older toddlers. They typically conditioning and positioning the 9-month-old are recommended for use by children from birth dummy and the Hybrid II dummies because the until the child reaches 40 lb. dummies would continue to be used in compliance
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recommended for use by children with which asked NHTSA to revise Standard approximately 10 percent of the masses up to 29.5 kg (65 lb). No. 213 to establish performance population between the sizes of 6-year- A child reaching 40 lb (18 kg) has standards for booster seats that can olds and 5th percentile adult females, outgrown a convertible or toddler restrain children up to 80 pounds. The and could potentially be used in restraint, but still must be restrained by Safety Board expressed concern about evaluating the performance of booster special means to safely ride in a vehicle. the performance of boosters when seats and vehicle belt systems. The Parents tend to move these young restraining a child that weighs more group met initially in May 2000 to children into the vehicle belt system, than the 6-year-old dummy that is define the concept. The weight and only to find that the lap and shoulder currently used in Standard No. 213 height of the proposed dummy were belts do not properly fit their children. compliance testing. This concern was provided from the Center for Disease The children are not yet large enough to also expressed by the Blue Ribbon Panel Control Data Bank, and was targeted to sit with their backs against the vehicle II in March 1999 (‘‘Blue Ribbon Panel II: be approximately 4′6″ and 72 lb. The seat back cushion with their knees bent Protecting Our Older Child Passengers’’) basic construction was envisioned to be over the seat edge. To compensate for a in its report on ways to increase the use similar to that of the small female shoulder belt crossing their face or neck, of age- and size-appropriate occupant dummy. The dummy was to be able to some children tend to place the restraints by children ages 4 through 15. be positioned in erect seated, slouched shoulder belt behind their backs, which Most booster seats currently on the seated, standing, and kneeling postures results in no restraint of the child’s market are certified for use by children to fully evaluate possible restraint upper torso. Children also find it more weighing up to 80 lb. To better evaluate configurations. comfortable to bend their knees at the the performance of these boosters with The task group held its first review vehicle seat cushion’s edge than to ride children at the higher end of the weight meeting in June 2000, and reviewed with the edge of the cushion pressing range recommended for the restraint, impact responses scaled from the small against their calves. Because their legs the agency is pursuing two separate but female and 6-year-old dummies. At that are not long enough to enable them to parallel efforts to address the protection time, provisional performance bend their knees at the cushion’s edge needs of older children. The first is a requirements were defined, and the while riding in a vehicle, children long-term program to develop a 76-lb, anthropometry and mass goals were generally slouch down in the vehicle 10-year-old dummy. The second is a finalized. The dummy instrumentation seat and scoot forward on the seat. short-term initiative to use a weighted 6- was specified to measure injury Slouching raises the lap belt over their year-old dummy to test booster seats parameters for the following body soft-tissue areas, which exposes beyond the 50-lb weight limit specified regions: head, neck, shoulder, thorax, abdominal organs to crash forces that in FMVSS No. 213. The weighted pelvis, femur, and tibia. can be imposed by the lap belt. dummy weighs 62 lb. The first 10-year-old prototype was Klinich et al. estimates that children assembled in February 2001. It weighed who are less than 148 centimeters in i. Development of the 10-Year-Old about 76 lb. The task group reviewed standing height do not adequately fit the Dummy Is a Long-Term Measure this prototype, and directed design seat belt and seating system in vehicles A 10-year-old dummy is being corrections. Subsequently, the first (‘‘Study of Older Child Restraint/ developed, but it is not far enough along drawings were completed in April 2001. Booster Seat Fit and NASS Injury in its development to be part of this GM and NHTSA separately performed Analysis,’’ DOT HS 808 248, November NPRM. 12 The following summarizes the preliminary dummy performance 1994.) Current NHTSA guidelines work on the dummy thus far. verifications in Spring 2001 and recommend booster seat use for children In early 2000, NHTSA asked the Summer 2001, respectively. The agency up to age 8, unless the child is 4′ 9″. Society of Automotive Engineers (SAE) is now conducting an extensive A booster seat improves the fit of a Dummy Family Task Group (DFTG) to evaluation of the dummy, which will vehicle’s belts on children. Booster seats develop a test dummy representative of include a series of sled testing of the are ‘‘child restraint systems’’ regulated a 10-year-old child. The development dummy. If no problems are in the same manner as other child and adoption of a dummy this size is encountered, NHTSA may issue an restraint systems by Standard No. 213. seen as a long-term solution to ensuring NPRM proposing the incorporation of The boosters come in a variety of styles, the proper restraint of the the 10-year-old dummy into Part 572 by the majority having high-backs, with early 2003. When it issues such an shoulder strap adjuster features on the 12 The legislative history to TREAD indicates that NPRM, NHTSA will also undertake sides. Belt-positioning seats (also Congress was interested in the potential for using the 10-year-old dummy specified in ECE 44. That rulemaking on Standard No. 213 to referred to as ‘‘belt-positioning dummy is manufactured by the Netherlands propose using the dummy in boosters’’) must be used with a lap and Organisation for Applied Scientific Research (TNO), compliance tests. At this time, we invite shoulder belt system. Boosters provide a which manufactures the other test dummies views on the development and potential raised seating platform for the child, referenced in ECE 44. These dummies are TNO’s ‘‘P’’ series of child dummies, which includes a use of the 10-year-old dummy in which provides a taller sitting height. newborn, a 9-month, 18-month, and 3-, 6-, and 10- Standard No. 213’s compliance tests. Raising the child helps position both the year-old. All P series dummies are of similar vehicle’s lap and shoulder belts construction. The agency evaluated the 3-year-old ii. A Weighted 6-Year-Old Dummy Is a correctly. The seating platform also child dummy and found it to have insurmountable Feasible Short-Term Alternative seating stability problems when placed in a child allows the child’s knees to bend restraint, and un-human-like impact kinematics As a short-term, interim measure, comfortably while the child is riding in because of its cervical and thoracic spine NHTSA is proposing the use of a the vehicle, which greatly reduces the construction. We also found problems with the weighted Hybrid III 6-year-old dummy instrumentation. As a result, because of design tendency to slouch. Booster seats are similarities of all P series dummies, our engineering (hereinafter ‘‘HIII–6CW’’) for use in dynamically tested by the agency using judgment was the 10-year-old TNO dummy would testing child restraints that are the 6-year-old test dummy, which not be suitable for use in crash testing. recommended for use by children weighs approximately 48 pounds and is Subsequently, TNO began developing the Q series weighing from 50 to 65 lb. ″ dummies, which appear likely to be more The agency developed the dummy by about 48 tall. biofidelic, stable and reliable than their In September 1996, the NTSB issued predecessor. The dummies are still in development adding weights to the current Hybrid III Safety Recommendation H–96–25, and are not available for use now. 6-year-old child dummy to increase the
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total weight from approximately 52 included thoracic calibration impacts, d. Expanding the Applicability of the pounds 13 to over 60 pounds.14 NHTSA torso flexion tests, and dynamic sled Standard to 65 Lb added approximately 10 pounds to the tests. The weights withstood dynamic NHTSA proposes to amend Standard dummy so that it could be used to impacts and testing without causing No. 213 to increase the upper limits of represent slightly heavier children. The excessive noise or vibrations in the data its applicability so that it would apply initial design concept utilized carbon channels. (Adding the weights does not to child restraint systems for children steel weights that were rigidly attached require any permanent modifications to who weigh 65 lb or less. Currently, the to the dummy in two locations: (1) a the dummy. When the weights are standard defines ‘‘child restraint weight located on the superior side of removed, the dummy reverts to its system’’ as ‘‘any device except Type I the pelvis between the pelvis and the original condition and meets the [lap] or Type II [lap/shoulder] seat belts, lumbar adaptor; and (2) weights located existing Part 572 specifications for the designed for use in a motor vehicle or on the lateral sides of the thoracic spine Hybrid III unweighted 6-year-old aircraft to restrain, seat, or position box. The steel pelvis weight added 3.8 dummy.) children who weigh 50 pounds or less’’ pounds to the dummy while the spine (S4). We would amend the definition to weights added a total of 5 pounds (each Component tests conducted with the steel version indicate that the added increase the weight limit to 65 lb. weight was 2.5 pounds on right and left The effect of the amendment would sides). The resulting dummy weight was weights did not appear to introduce structural or instrumentation problems. be to apply Standard No. 213 to devices approximately 60 pounds. The that are recommended for children modifications also increased the The thoracic responses met the calibration requirements of the weighing 50 to 65 lb. There has been dummy’s seating height by one inch. considerable interest over the years in This change in stature appeared to be unweighted HIII–6C dummy; however, the peak probe force measured during raising the limit to require that child acceptable; a heavier occupant could restraint systems that are recommended the compression interval was near the also be slightly taller. for older children (i.e., booster seats) upper end of the corridor. Thus, the Following preliminary testing with perform adequately in a crash. The aim thoracic impact response corridor may the carbon steel weights and upon of raising the limit was to bring booster need to be adjusted for the weighted experiencing some belt retention seats that are recommended for children dummy. Electronic responses and visual problems, we determined that better over 50 lb within Standard No. 213 and weight and center of gravity observations confirmed that there was subject them to that standard’s dynamic distributions could be achieved through no contact between the ribs and the test, just as other restraints are tested the use of a dense Tungsten alloy spine weights during the oblique under the standard. The intent to material. The geometry of the spine and impacts. The torso flexion tests also met evaluate booster seat performance more pelvis weights was redesigned to all of the requirements of the thoroughly by dynamically testing them achieve a weight of 5.1 pounds for the unweighted HIII–6C dummy. could not be realized, however, without pelvis weight and 5.2 pounds total for Sled tests have been conducted with a test dummy representing an older the spine weights. The increased both the steel and Tungsten versions. child. It would make little sense to raise density offered by the Tungsten alloy For all sled tests, the current Standard the standard’s limit above 50 lb if a test allowed each of the weights to be No. 213 pulse and buck were used. Both device were not available to test the reduced in size, thus reducing the versions of the dummy have been tested performance of the restraint. Further, possibility of interference between the with different booster seats and with 3- booster seats were not being marketed ribs and the spine weights. Further, the point (lap and shoulder) belt systems. so as to be beyond the standard’s dummy’s seated height was only The results of the dummy, particularly purview; their recommended usage increased by approximately 0.7 inches with the high mass Tungsten weights, included children weighing less than 50 over the unweighted HIII–6C dummy. appear to be reasonable as compared to lb so they were, at least, subject to the Preliminary evaluation tests have the standard HIII–6C dummy. That is, 30 mph dynamic test with the 6-year- been conducted on dummies equipped there have been no structural or old (48 lb) dummy. For these reasons, with both the steel and Tungsten alloy electronic deficiencies observed as a NHTSA decided against increasing the versions of the weights. These tests result of the sled testing. Additionally, 50 lb limit in the definition of ‘‘child a series of four Standard No. 213 sled restraint system.’’ (See 58 FR 46928, 13 The Hybrid III 6-year-old dummy weighs about 46932 for a discussion of the agency’s 51.5 lb, whereas the Hybrid II dummy weighs tests using various child restraints were approximately 48 lb. A 50th percentile 6-year-old performed to compare the response of decision not to undertake rulemaking on weighs 51 lb. the unweighted Hybrid III 6-year-old this issue.) 14 The agency originally began this project by Today, we are proposing to evaluating whether weight could be added to the dummy to the HIII–6CW. Tests of the revised weighted 6-year-old H-III incorporate a weighted 6-year-old HIII 6-year-old dummy by way of a weighted vest. dummy (62 lb total weight) into Part We purchased a weighted vest from First dummy produced normal dummy 572. We tentatively conclude that the Technology Safety Systems, a dummy kinematics (motion in midsagittal plane) manufacturer, to evaluate its design. The weights dummy can provide useful information in booster seats and regular belt were contained in pouches located over the on the performance of booster seats that abdomen in the front and over the lower back of systems. the dummy’s posterior. On inspection of the vest on are recommended for children above 50 the dummy, we decided that this design would be A technical report discussing the lb. Accordingly, we propose to increase unacceptable for use in compliance testing. Because agency’s work in developing the the 50 lb weight limit in the definition the weights were not rigidly attached to the dummy, titled ‘‘Evaluation of the of child restraint system to 65 lb. In the dummy, the weights could rattle or even slap in a Weighted Hybrid III Six-Year-Old dynamic event and possibly create noisy data event that the weighted 6-year-old signals in the dummy’s instrumentation responses. Dummy,’’ has been placed in the docket. dummy is not determined to be Further, the vest was somewhat bulky, and the A proposal to incorporate the sufficient for testing child restraints for agency was concerned that it could affect the specifications and performance criteria children weighing above 50 lb, what positioning of the dummy within the restraint for the HIII–6CW in Part 572 will be system. The agency therefore concluded that the would be the advantages and weighted vest concept was not a feasible published in early 2002 in the Federal disadvantages of raising the limit alternative. Register. nonetheless? Regardless of whether the
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weighted 6-year-old dummy were likely to cause serious or fatal injury to limiting the time duration lowers the adopted, comments are also requested out-of-position occupants). The injury calculated HIC values. on the advantages and disadvantages of criteria in Standard No. 213 are A. Should HIC Duration Be Limited to increasing the weight limit to eighty intended to limit the severity of forces 15 Milliseconds? pounds (80 lb) in the absence of an 80- imposed on a child during a crash. lb test device. Our tentative conclusion Child restraints meeting these criteria We have previously declined to limit is that the weighted 6-year-old dummy have worked effectively to maintain the time duration for calculating HIC in is not sufficient to assess the dynamic high levels of performance in crashes. Standard No. 213 compliance tests performance of a booster seat in Because the injury criteria of the because of the possible lessening of the restraining an 80-lb child. Consumers standards are intended to minimize stringency of the standard. Prior to the Union (CU) has suggested in its risks from different injury sources, it May 2000 rule on advanced air bags, comment to the agency’s draft child might be reasonable to have non- Standard No. 208 limited HIC to 1000 passenger protection plan (Docket identical criteria. but limited the calculation to a NHTSA–7938, page 11) that maximum time interval of 36 msec manufacturers should not be permitted 1. Scaled Injury Criteria (100036). In 1995, we were asked to to recommend a child restraint for The injury criteria that a child amend Standard No. 213 to calculate children of weights above the weight of restraint must meet when restraining a HIC using a 36 msec time duration, as the largest test dummy used to evaluate dummy would change in several ways. was done at the time for Standard No. the restraint in compliance testing. Lower head and chest injury criteria are 208. The agency decided against limiting HIC because we determined NHTSA previously declined the proposed, but the duration within that HIC values were generally lower suggestion, believing that limiting the which accelerations are measured when the time interval was limited to 36 recommendations in the manner would be limited. A new criterion for msec (HIC ), compared to HIC suggested could result in safety losses. chest deflection is also proposed, as 36 unlimited (an unlimited time duration may be (For example, a manufacturer would not well as new criteria for neck injury. used to calculate HIC). Given that a be able to recommend a toddler restraint Currently, Standard No. 213 specifies a HIC limit could have reduced the for children above the weight of the 3- head injury criterion (HIC) of 1000 and 36 stringency of the standard, there was not year-old dummy, 33 lb, which would maximum acceleration level for the enough information justifying any limit result in 3-year-olds being graduated out chest (60g). These were based on the on the time interval. Thus, NHTSA of child restraints at too early an age.) criteria that were specified for the adult (61 FR 30824; June 18, 1996.) Comments decided against limiting HIC to 36 msec male test dummy in Standard No. 208 in Standard No. 213. 69 FR 35127, July are requested on CU’s suggestion with in the early 1980’s, when injury criteria respect to booster seats. If the weighted 6, 1995. were incorporated into Standard No. Now, however, we are considering dummy were adopted, should 213 (44 FR 72131; December 13, 1979). manufacturers be allowed to limiting the time interval for measuring At that time, there were no injury HIC in the child restraint standard. recommend boosters for children only criteria that were separately scaled from up to 62 lb? Standard No. 208 had provided for an adult dummy to reflect anatomical calculating HIC for the entire crash e. New or Revised Injury Criteria differences and differing injury duration as the child restraint standard This section describes proposed tolerance of children. In the agency’s does now, but NHTSA limited the amendments to the measures that we May 2000 final rule on advanced air bag maximum time duration of the HIC use to assess the performance of child technology, NHTSA amended Standard calculation to 36 msec for Standard No. restraints under Standard No. 213. We No. 208 by, among other things, 208 because low acceleration crashes propose injury criteria that are the same adjusting the criteria and performance over a long time duration could exceed as the scaled injury criteria for children limits to account for motor vehicle HIC 1000unlimited even though they were specified in Standard No. 208, injury risks faced by different size not likely to result in brain injuries. The Occupant Crash Protection. We also occupants. (65 FR 30680; May 12, 2000.) agency determined that limiting the propose some requirements similar to See also a paper titled ‘‘Development of duration over which HIC is calculated to the static testing requirements of Improved Injury Criteria for the a maximum of 36 msec, while limiting Standard No. 213. The requirements Assessment of Child Restraint Systems,’’ HIC to 1000, assured that the that child restraints must maintain that has been placed in the docket. acceleration level of the head will not system integrity and limit excursion of i. Head Injury exceed 60 g’s for any period greater than the torso, head and knees in the 36 msec. The 60 g acceleration limit was simulated frontal impact would not be This NPRM proposes to replace the set as a reasonable head injury threshold changed. HIC 1000 limit in Standard No. 213 with by the originators of the ‘‘Wayne State The agency requests comments on the scaled HIC values adopted by the Tolerance Curve,’’ which was used in each of the proposed injury criteria. May 2000 air bag final rule: 700 for 6- the development of the HIC calculation. Comments are solicited on what risk year-old dummy, 570 for the 3-year-old 51 FR 37028; October 17, 1986. levels are acceptable, what factors dummy; and 390 for the CRABI 12- The time interval was further reduced should be considered in selecting month-old. In Standard No. 208, these to 15 msec by the May 2000 final rule performance limits and whether the values are calculated over a 15 amending Standard No. 208. The May same limits as in Standard No. 208 millisecond (msec) duration. We 2000 rule on advanced air bags replaced should be established for the child propose to calculate HIC over a 15 msec 100036 with HIC 70015, based on restraint standard. The two standards duration (HIC 15) for Standard No. 213. recommendations from motor vehicle address different sources of potential Comments are requested on this issue, manufacturers that the duration for the harm to children. The injury criteria for however, because while HIC15 is HIC computations should be limited to children in Standard No. 208 are appropriate for Standard No. 208, there 15 msec with a limit of 700 for the 50th intended to minimize the risk from a currently is no limit on the time percentile adult male dummy. NHTSA deploying air bag (ensuring that the air duration used to calculate HIC in determined that the stringency of HIC bag deploys in a manner much less Standard No. 213. Generally speaking, 70015 was equivalent to HIC 100036 for
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long duration pulses, because while (NCAP) show that there was not a major conducted in NCAP produced over a 60 15 HIC produces a lower numerical value difference between HICunlimited and percent passage of the HIC15 for long duration events, its 700 lower HIC36, indicating that the HIC responses requirement for these higher speed failure threshold compensated for the are from contact events shorter than 36 impact test conditions. For the 6-year- 15 reduction. The final rule employed a msec. Further, accident data show that old Hybrid III dummy, the HIC15700 15 msec time interval whenever 79 percent of all brain injuries for requirement was met 91 percent of the calculating the HIC function in Standard children 0–8 years old are due to time in a series of 11 tests. Based upon No. 208, and limited the maximum contact, which would imply the these results, the agency has tentatively response of the adult male dummy to prevalence of short duration head concluded that incorporation of the 700 and the response of the smaller acceleration events. This finding scaled HIC15 criteria for these Hybrid III dummies to suitably scaled maximums appears to indicate a reasonable basis child dummies would be reasonable. (700 for the 6-year-old, 570 for the 3- for making Standard No. 213’s Comments on test result experience of year-old, and 390 for the CRABI). calculation of HIC consistent with vehicle and/or child restraint Since the TREAD Act directs us to Standard No. 208. Comments are manufacturers with the Hybrid III child consider adopting the scaled injury requested on whether the time interval dummies and the scaled HIC15 criteria adopted by the May 2000 final should be limited to 15 msec, to 36 responses are sought. rule on advanced air bags, we are msec, or not at all. Limiting the time B. Test Data proposing that the HIC limits of 70015, interval to 15 msec would produce 57015 and 39015 be incorporated into lower HIC values than the current The agency conducted two series of Standard No. 213 for tests with the 6- method of calculating HIC in Standard tests to evaluate if the child injury year-old, the 3-year-old and the CRABI, No. 213, but the reduction in HIC100036 tolerance limits specified in FMVSS No. respectively. NHTSA believes that it to the lower failure thresholds of 70015, 208 are appropriate and practicable for should take a cautious approach in 57015 and 39015 should achieve use in testing child restraints using modifying the head injury tolerance equivalent performance. Hybrid III child dummies. The first The agency does not know at this time level set by the HIC requirement. series of sled tests was performed by the degree to which HIC 700 and the Comments are requested on the 15 VRTC to determine the performance of scaled thresholds for the smaller appropriateness of both the scaled HIC typical forward-facing child restraint dummies would reduce the current HIC limits and on a 15 msec (or other) time systems secured by either a lap belt failure rate of Standard No. 213 because interval for calculating HIC. In cases of only, a lap and shoulder belt, or the head contacts with softer surfaces, such data from past tests are unavailable in a format that allows us to recalculate the LATCH system (the child restraint’s as an airbag system, the time duration attachments were attached to the child of the contact is longer than in head relevant values. However, based upon agency test results, we expect a high restraint by webbing material). The contacts with hard surfaces. Since HIC Hybrid III 3-year-old test dummy was was initially developed for high passage rate for HIC15. A series of five rear-facing and five forward-facing tests used in this testing. The child restraint acceleration, short duration impact systems were installed and tested in events, it is appropriate to limit the HIC were conducted at VRTC with the CRABI dummy. In those tests, all five either the rear seat of a contemporary calculation in such airbag impacts, since sedan or the seating assembly specified passed the HIC15390 requirement in the the acceleration levels are low but time in FMVSS No. 213. In addition, three duration is long and not similar to the rear-facing tests. Three of five passed for the forward-facing tests. Forward facing sled acceleration pulses were studied: a original intent of the HIC criterion. Data tests with the Hybrid III 3-year-old typical Standard No. 208 frontal barrier from sled testing of child restraints dummy have indicated 100 percent crash (30 mph), an NCAP frontal crash conducted at the agency’s Vehicle passage of the HIC 570 requirement in (35 mph), and a Standard No. 213 pulse. Research & Test Center (VRTC) and from 15 Standard No. 213 conditions. A series of The results of the VRTC sled testing are evaluating child restraints as part of the nine sled tests conducted under the tabulated in Table 9 and discussed in a agency’s New Car Assessment Program NCAP program at an elevated sled test paper titled, ‘‘Dynamic Evaluation of velocity of 35 mph also experienced a Child Restraints Using Various Frontal 15 In addition, the agency also believed that, for 100 percent passage of the requirement; Crash Pulses,’’ which is available from pulse durations shorter than approximately 25 the docket. mses, the HIC 70015 requirement is more stringent a series of 20 in-vehicle crash tests with than HIC 100036. Hybrid III 3-year-old dummies BILLING CODE 4910–59–P
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BILLING CODE 4910–59–C
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The second series of tests were the 50th percentile male dummy from iii. Neck Injury performed in 20 NCAP vehicle crash 76 mm to 63 mm (from 3 inches (in) to Currently, there is no neck injury tests to determine the performance of 2.5 in). These limits were then scaled to criterion in Standard No. 213, because forward-facing child restraint systems obtain equivalent performance limits for the current Hybrid II test dummies are restrained in the rear seat by a lap and the 6- and 3-year-old dummies. The not designed with neck force shoulder belt with top tether and by a CRABI does not measure chest measurement capability. However, the LATCH system (lower anchorages and deflection, so no limit was specified for CRABI 12-month-old and the Hybrid III top tether). The Hybrid III 3-year-old that dummy. Compression deflection of 3- and 6-year-old dummies have been test dummy was also used in this the sternum relative to the spine was designed to measure neck bending testing. The results of these NCAP crash limited in Standard No. 208 to 40 mm moments and forces in the fore and aft tests are tabulated and set forth in Table (1.6 in) for the 6-year-old dummy and direction, and axial compression and 10, infra. 34 mm (1.3 in) for the 3-year-old tension loads. Because the dummies are Data from the VRTC sled tests and the dummy. capable of measuring neck injury NCAP full scale vehicle tests suggest We propose the same limits for parameters, we are proposing that the that the new Standard No. 208 head Standard No. 213, except for the standard include a new neck criterion. injury criteria, HIC15 with its lower weighted 6-year-old dummy (see next The May 2000 final rule on advanced performance limit (570 for 3-year-old) is section, below). Comments are air bags specified limits for a neck equivalent to the current HICunlimited requested as to whether these limits are injury criterion, Nij, for the adult and with a performance limit of 1000. This appropriate for testing child restraint child dummies used in Standard No. conclusion is reached based upon the systems, particularly with respect to 208 compliance testing. Nij is a new observation that both the Hybrid II webbing systems and impact shields injury formula that accounts for the HICunlimited, and the Hybrid III HIC15, that some child restraints use to restrain combination of flexion, extension, responses in Standard No. 213 appear to forward movement of the child’s torso. tension and compression. Nij accounts comply with their respective criteria for the superposition of loads and limits with roughly a 50 percent margin. C. Weighted 6-Year-Old Dummy moments, and the additive effects on ii. Thoracic Injury Based upon scaling considerations of injury risk. Standard No. 208 includes an additional, more stringent tension/ A. Chest Acceleration increased mass of the thoracic spine, greater chest compression limits appear compression limit to independently This document proposes new limits to be justified for the HIII–6CW since control these potentially injurious on chest acceleration and chest this dummy would represent either an loading modes in the air bag deflection. Currently, Standard No. 213 8-year-old, or an 80th- to 90th-percentile environment to out-of-position children. limits chest acceleration to 60 g’s. The 6-year-old in weight and stature. This NPRM proposes to incorporate May 2000 final rule on advanced air an Nij criterion in Standard No. 213 that In evaluating chest acceleration, a is the same as that specified in Standard bags scaled this value to 55 g’s for the pure mathematical evaluation would 3-year-old dummy and 50 g’s for the No. 208, except that the limit on peak indicate that accelerations should be tension and compression would not be CRABI. The chest acceleration limit somewhat lower for the heavier dummy. remained at 60 g’s for the 6-year-old adopted and the ‘‘in-position’’ critical However, considering that both the 5th- values 16 would be used for calculation dummy. We propose incorporating the percentile female and Hybrid III 6-year- same limits into Standard No. 213. For of the Nij. This decision is consistent old dummy have a 60g limit for injury with the agency’s recognition of in- the 12-month-old CRABI dummy, the assessment purposes, the agency is agency has observed chest accelerations position critical values in the Standard reluctant to propose a reduction to a No. 208 final rule, and with the of around 40 g’s in rearward-facing lower g level for a dummy that is sized child restraints. For forward-facing observation that neck injury for children between the female and the existing 6- properly restrained in child restraints is restraints using the 12-month-old year-old. CRABI dummy, nearly 75 percent of not as prevalent as for those positioned agency test results exceeded the 50 g Accordingly, the agency proposes to in close proximity to an air bag at the limit, with accelerations generally less incorporate a 42 mm deflection limit for time of deployment. A precise than 55 g’s. Chest acceleration responses the weighted 6-year-old and a chest determination of neck injuries to for both the 3- and 6-year-old dummies acceleration limit of 60 g. children in child restraints has been difficult to quantify. When the NASS were well below their respective criteria D. Test Data in agency tests. and FARS data are sorted to examine Data from the VRTC and NCAP tests neck injury for children restrained in a B. Chest Deflection indicate a high passing rate for chest child restraint and involved in a crash Currently, there is no chest deflection acceleration and deflection tests. In the severity comparable to the Standard No. limit in Standard No. 213 because the VRTC frontal sled tests, 94 percent of 213 sled pulse, few neck injuries are current Hybrid II test dummies cannot the tests of the LATCH seats (15 out of observed. However, biomechanics measure chest deflection. Incorporating 16) resulted in passing values for chest researchers have indicated to the agency the Hybrid III 6- and 3-year-old acceleration (average 43 g’s), and 100 that, although not frequent, such dummies into Standard No. 213, as percent (17 out of 17) passed chest injuries do occur under severe crash proposed in this NPRM, would enable deflection (average 0.61 in). For the non- us to measure deformation-deflection of LATCH seats, 76 percent (13 out of 17) 16 The FMVSS No. 208 final rule proposed both ‘‘out-of-position’’ and ‘‘in-position’’ critical values the thorax sternum. Because the passed chest acceleration (average 47 for Nij. The out-of-position values are applicable to dummies would be capable of g’s) and 100 percent (16 out of 16) the air bag loading environment where the loading measuring this injury parameter, we passed chest deflection (average 0.73 to the neck is due to the occupant being out of a propose that Standard No. 213 include in). These data suggest that the Standard normal seating position in close proximity to the air bag. In-position critical values are applicable for limits on chest deflection. No. 208 chest acceleration and chest conditions such as child restraints, where the The May 2000 final rule on advanced deflection limits are practicable for occupant is properly positioned and neck forces air bags reduced the deflection limit for child restraint systems. and moments result from inertial loadings.
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conditions. In the agency’s tests of child incorporate the neck criterion of Nij = type of neck injury criterion at all in restraints, discussed below, the Nij 1.0, where the critical values are the in- Standard No. 213, and the difficulty values calculated when applying the in- position values shown in Table 10, and child restraint manufacturers may have position critical values ranged around the axial force is not limited. Comments in meeting this new injury measurement Nij = 1. NHTSA has tentatively are requested on this issue. NHTSA also requirement. determined that Standard No. 213 will requests comments on the need for any
TABLE 10.—NIJ IN-POSITION CRITICAL VALUES
Nij intercepts Dummy size Tension Compress Flexion Extension
CRABI ...... 1460 N (328 lbf) ...... 1460 N(328 lbf) ...... 43 Nm (32 lbf-ft) ...... 17 Nm (13 lbf-ft) 3 YO ...... 2340 N (526 lbf) ...... 2120 N (477 lbf) ...... 68 Nm (50 lbf-ft) ...... 30 Nm (22 lbf-ft) 6 YO ...... 3096 N (696 lbf) ...... 2800 N (629 lbf) ...... 93 Nm (69 lbf-ft) ...... 42 Nm (31 lbf-ft)
iv. Tabulated Data Table 9, supra, and the following table 11, set forth the data from the NCAP tests. They show that meeting the Nij is practicable, especially for LATCH seats, but that the neck measurements have little compliance margin for Nij = 1.0. A detailed discussion of the findings can be found in the technical paper, ‘‘Dynamic Evaluation of Child Restraints Using Various Frontal Crash Pulses,’’ previously referenced in this preamble.
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BILLING CODE 4910–59–C requirement be deleted? NHTSA capability of the padding and 2. Static Testing Criteria specified the requirement (whose underlying structure could be measured. thickness and static compression (44 FR 72131, 72135). Since today’s Certain changes to the requirements specifications are compliance-tested NPRM proposes use of the instrumented for which compliance is measured in a CRABI 12-month-old dummy for use in static test seem appropriate by an statically) because there was no incorporation of the new test dummies. instrumented infant test dummy testing restraints recommended for Comments are requested on whether available at the time (1979) the children under 22 lb, we propose changes are needed to S5.2.3, which requirement was adopted. The agency’s deleting S5.2.3. specifies a padding requirement for goal was to establish dynamic test The standard refers to use of one or child restraints used by children requirements for infant restraints, so more Hybrid II dummies in some of the weighing less than 22 lb. Should the that the total energy absorption static tests. These references would be
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changed to the Hybrid III dummies or compliance option (i.e., to use the new public. The agency received about 30 the CRABI. See, e.g., S5.2.1.2, on use of dummies prior to the mandatory comments on the draft plan. the dummies to determine whether a compliance date) must be made prior to, Many commenters responded to the seat back is required. See also or at the time of the compliance test and second of the three strategies, making S5.4.3.5(b) and S6.2.3 (post-impact that the selection is irrevocable for that suggestions as to how they believed buckle force release). NHTSA proposes child restraint. This provision is needed Standard No. 213 should be improved to to amend S6.2.3 so that the tension for us to efficiently carry out our further enhance child restraint would be 90 N when a child restraint is enforcement responsibilities. We want performance. Based on the comments tested with the CRABI, and 350 N when to avoid the situation of a manufacturer we received, we believe that this NPRM a child restraint is tested with the confronted with an apparent substantially addresses them. weighted 6-year-old dummy. Comments noncompliance (based on a compliance Commenters strongly supported the are requested as to what other test) with the option it has selected plan to update the standard seat requirements should be changed. responding to that noncompliance by assembly and evaluate the crash pulse specified in Standard No. 213 for VI. Proposed Effective Dates arguing that its products comply with a different option for which the agency compliance tests of child restraint TREAD requires us to complete this has not conducted a compliance test. To systems. Commenters endorsed the plan rulemaking by November 1, 2002. Based ensure that we will not be asked to to undertake rulemaking to add the on that date, the following section conduct multiple compliance tests first CRABI and Hybrid III child test discusses tentative conclusions about for one compliance option, then for dummies to the standard, along with the the dates on which compliance with the another, we would require scaled injury criteria. Commenters requirements would become mandatory. manufacturers to select the option by supported extending the scope of the a. We believe that manufacturers the time it certifies the child restraint standard to child restraint systems could begin certifying their child system and prohibit them from recommended for children above 50 lb. restraints based on testing done on the thereafter selecting a different option for Additionally, the November 2, 2001 new seat assembly by 2 years after the the restraint. This would mean that NPRM (66 FR 55623) addressed date of a final rule. That compliance failure to comply with the selected comments suggesting improvements to date would be November 1, 2004. While option would constitute a Standard No. 213’s labeling we do not expect the proposed changes noncompliance regardless of whether requirements. to the seat assembly to have a major the restraint complies with another It should be noted that there were a effect on the results of compliance tests, option. (Of course, a manufacturer may few comments on amending Standard restraint manufacturers will likely have petition for an exemption from the No. 213 to incorporate side impact to conduct testing to confirm protection requirements. These compliance of their restraints. This will recall requirements of the statute on the basis that the noncompliance is comments will be addressed in the be a financial impact on the forthcoming ANPRM. manufacturers that, coupled with the inconsequential as it relates to motor fact that some redesign may be vehicle safety.) b. Rear-Impact Test c. As for using the weighted 6-year- necessary to meet the revised injury No comments were received on old dummy to test restraints (typically criteria (see next section), would be incorporating rear impact test booster seats) recommended for more appropriately spread out over a 2- requirements into Standard No. 213. children with masses of over 22.7 kg year time period. As directed by the TREAD Act, we b. We propose providing 2 years of (weights over 50 lb), we propose that the have considered whether to incorporate leadtime (two years after publication of dummy can begin to be used in a rear impact test into the standard. a final rule) before specifying the use of compliance tests 180 days after During 1991–2000, 9,580 passenger the new CRABI and Hybrid III dummies publication of a final rule to incorporate vehicle occupants under 9 years old in compliance tests and the revised or the dummy into Part 572. The weighted were fatally injured. Of these, 690 were new injury criteria. That compliance dummy’s kinematic performance is killed in rear impact crashes (average of date would be November 1, 2004. We comparable to that of the unweighted 6- 69 per year), while 3751 and 2759 believe that child restraint systems year-old dummy. We do not anticipate children were killed in front and side generally are already able to meet the that manufacturers would have to impact crashes, respectively. Of the 690 proposed requirements using the new redesign their booster seats to certify children killed in rear impact crashes in dummies, so redesign of current child compliance using the dummy. 1991–2000, 129 were restrained with a restraints would not be generally VII. Child Passenger Safety Plan and lap and/or shoulder belt; 218 were in needed. For some non-LATCH Other Issues of the TREAD Act child restraint systems; 280 were restraints, however, redesign might be unrestrained and 63 were of other or a. Comments on Possible Rulemaking needed to meet the new HIC15 and chest unknown restraint use. Of the 69 acceleration requirements, so longer On November 27, 2000, the agency children killed per year in rear impacts, leadtime might be needed. (As noted in published a request for comments on a on average 22 of them were in child section V(f), supra, some of the tested draft planning document that NHTSA restraint systems. restraints failed to meet the proposed prepared that outlined our vision for Data from the Fatal Analysis limits in the VRTC tests.) Comments are enhancing child passenger safety over Reporting System (FARS) for 1991–2000 requested on how much leadtime would the next few years (65 FR 70687). The show 108 children, ages less than 1 year be necessary. plan contained our views on old, were fatally injured in rear impact We also propose that manufacturers implementing three strategies for crashes, while 655 children of that age should be permitted the option of improving the safety of child occupants group were killed in frontal crashes and voluntarily using the new test dummies from birth through age 10: increasing 391 were killed in side crashes. prior to the date on which they would restraint use; improving the Based on these data and the be required to do so. Note, however, that performance and testing of child timeframe of the TREAD Act, we have this proposal also specifies that a restraints; and improving mechanisms primarily focused on frontal and side manufacturer’s selection of a for providing safety information to the impact protection. However, the agency
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intends to explore potential upgrades to VIII. Rulemaking Analyses and Notices been unable to identify what changes Standard No. 213 in rear impact manufacturers could make to enable a. Executive Order 12866 (Regulatory protection as part of the ANPRM. their restraints to meet the proposed Planning and Review) and DOT criterion. While meeting the proposed c. Child Restraints in NCAP Tests Regulatory Policies and Procedures Nij limit appears feasible because test Section 14(b)(9) of the TREAD Act The agency has considered the impact results for some current child restraints requires consideration of ‘‘[w]hether to of this rulemaking action under show that they met the proposed Nij include child restraints in each vehicle Executive Order 12866 and the value, we do not know which particular crash tested under the New Car Department of Transportation’s design features generally reduced Nij. Assessment Program.’’ regulatory policies and procedures and Thus, we could not estimate the costs of Each year since 1979, the agency has determined that it is ‘‘significant’’ such countermeasures. Comments are evaluated vehicle crashworthiness in because of Congressional and public requested on possible countermeasures frontal impact under the New Car interest in upgrading Standard No. 213 and their costs. Assessment Program (NCAP). In 1997, a and the performance of child restraint The agency does not believe that side impact program was initiated and systems. Accordingly, the action was updating the seat assembly and revising added to the NCAP. Under the NCAP, reviewed under the Executive Order. the crash pulse would affect dummy As discussed below and in NHTSA’s the agency conducts approximately 40 performance to an extent that benefits preliminary regulatory evaluation (PRE) frontal and 40 side impact crash tests would accrue from such changes. for this NPRM 17, the proposal to use each year. For the frontal crash, the Research will be conducted later this new dummies in compliance tests, agency does these tests with two 50th year to assess the effects of such changes including a weighted 6-year-old percentile dummies in the front seat. on dummy performance. dummy, could result in increased Side impact crash tests are also testing costs for manufacturers that want b. Regulatory Flexibility Act conducted with a two 50th percentile to certify their restraints using the tests The Regulatory Flexibility Act of dummies, however one dummy is that NHTSA will use in compliance 1980, as amended, requires agencies to placed in the driver seat and the other testing. The PRE estimates that use of evaluate the potential effects of their in the left rear passenger seat. the new dummies and other aspects of proposed and final rules on small In response to the TREAD Act, NCAP the changes to the test procedure would businesses, small organizations and incorporated various child restraints add testing costs of $2.72 million. We small governmental jurisdictions. I into frontal NCAP crash tests for the believe that use of the new dummies, in hereby certify that this NPRM would not model year 2001 testing. Child restraints itself, would not necessitate redesign of have a significant economic impact on were placed in a total of twenty child restraints. The new dummies a substantial number of small entities. vehicles, varying in type and size. The perform similarly to the ones presently NHTSA estimates there to be about 10 agency evaluated performances of six used in compliance testing. manufacturers of child restraints, four or different five-point-harness forward- On the other hand, the new neck five of which could be small businesses. facing child restraints. A fully injury criteria would necessitate Manufacturers might have to make some instrumented Hybrid-III three-year-old improvements in the performance of design changes to some child restraints dummy was used to assess performance. some child restraints. The agency to meet the new injury criteria, In each vehicle tested, the subject child estimates that the proposal to use the particularly the neck injury criterion. restraint was secured tightly, as new and scaled injury criteria of NHTSA does not know the extent or prescribed by the child restraint Standard No. 208 would prevent an nature of such changes, and has manufacturer’s instructions. In addition, estimated 3–5 fatalities and 5 MAIS 2– requested comments on them and their all child restraints, whether secured 5 non-fatal injuries for children ages 0– costs. We believe that only small with LATCH or secured with a lap/ 1 annually. In addition, the proposal changes to child restraints would be shoulder belt, used a top tether. Similar would save 1 fatality and mitigate 1 needed to allow them to pass the testing will be conducted for both the MAIS 2–5 injury in the 4- to 6-year-old proposed neck injury criterion. Thus, front and side NCAP program in model age group annually. These were there would likely be no impact on the year 2002. estimated by evaluating the test results number of child restraint producers. Section 14(g) of the TREAD Act of some child restraints that failed the Comments are requested on the changes requires NHTSA to establish a child proposed neck injury criterion, and that are needed and the effect of this restraint safety rating consumer estimating what benefits would accrue if rule on the number of child restraint information program. NHTSA published those restraints were redesigned so that producers. a proposed rating program on November they could just pass the proposed A rule adopting today’s proposals 6, 2001 (66 FR 56146, 66 FR 56048), criterion. The needed design changes would increase the testing that NHTSA which discussed the placement of child appear to be small, because the conducts of child restraints, which in restraints in each vehicle crash tested restraints that met or came close to turn could increase the certification under the New Car Assessment Program meeting the proposed Nij limit appear responsibilities of manufacturers. as a possible approach to obtain outwardly to be the same as those that However, the agency does not believe information for a rating program. We failed to meet it. Thus far, NHTSA has such an increase would constitute a used the results of the child restraint significant economic impact on small NCAP tests in determining the 17 NHTSA’s preliminary regulatory evaluation entities, because these businesses feasibility of the proposal. The agency (PRE) discusses issues relating to the potential currently must certify their products to costs, benefits and other impacts of this regulatory has asked for public comment on the action. The PRE is available in the Docket for this the dynamic test of Standard No. 213. rating program proposal and will rule and may be obtained by contacting docket That is, the products of these consider the comments received, and all Management at the address or telephone number manufacturers already are subject to other available information, in deciding provided at the beginning of this document. You dynamic testing using child test may also read the document via the Internet, by whether to include child restraints in following the instructions in the section below dummies. The effect of this proposal on vehicles tested under NCAP over the entitled, ‘‘Viewing Docket Submissions.’’ The PRE most child restraints is to subject them long-term. will be listed in the docket summary. to testing with new dummies in place of
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existing ones. Testing child restraints on (Adjusting this amount by the implicit h. Paperwork Reduction Act a new seat assembly is not expected to gross domestic product price deflator for Under the Paperwork Reduction Act significantly affect the performance of the year 2000 results in $109 million.) of 1995, a person is not required to the restraints. This NPRM will not result in costs of respond to a collection of information $109 million or more to either State, c. Executive Order 13132 (Federalism) by a Federal agency unless the local, or tribal governments, in the Executive Order 13132 requires collection displays a valid OMB control aggregate, or to the private sector. Thus, number. This proposed rule does not NHTSA to develop an accountable this NPRM is not subject to the process to ensure ‘‘meaningful and contain any collection of information requirements of sections 202 of the requirements requiring review under the timely input by State and local officials UMRA. in the development of regulatory Paperwork Reduction Act. policies that have federalism e. National Environmental Policy Act i. National Technology Transfer and implications.’’ ‘‘Policies that have NHTSA has analyzed this proposal for Advancement Act federalism implications’’ is defined in the purposes of the National Section 12(d) of the National the Executive Order to include Environmental Policy Act. The agency regulations that have ‘‘substantial direct Technology Transfer and Advancement has determined that implementation of Act of 1995 (NTTAA) directs us to use effects on the States, on the relationship this action would not have any between the national government and voluntary consensus standards in our significant impact on the quality of the regulatory activities unless doing so the States, or on the distribution of human environment. power and responsibilities among the would be inconsistent with applicable various levels of government.’’ Under f. Executive Order 12778 (Civil Justice law or otherwise impractical. Voluntary Executive Order 13132, the agency may Reform) consensus standards are technical standards ( e.g., materials specifications, not issue a regulation with Federalism This proposal would not have any test methods, sampling procedures, and implications, that imposes substantial retroactive effect. Under 49 U.S.C. business practices) that are developed or direct compliance costs, and that is not 21403, whenever a Federal motor adopted by voluntary consensus required by statute, unless the Federal vehicle safety standard is in effect, a standards bodies, such as the government provides the funds State may not adopt or maintain a safety International Organization for necessary to pay the direct compliance standard applicable to the same aspect Standardization (ISO). The NTTAA costs incurred by State and local of performance which is not identical to directs us to provide Congress, through governments, the agency consults with the Federal standard, except to the OMB, explanations when we decide not State and local governments, or the extent that the state requirement to use available and applicable agency consults with State and local imposes a higher level of performance voluntary consensus standards. officials early in the process of and applies only to vehicles procured There are no voluntary consensus developing the proposed regulation. for the State’s use. 49 U.S.C. 21461 sets standards available for use at this time. NHTSA also may not issue a regulation forth a procedure for judicial review of with Federalism implications and that final rules establishing, amending or IX. Submission of Comments preempts State law unless the agency revoking Federal motor vehicle safety How Can I Influence NHTSA’s Thinking consults with State and local officials standards. That section does not require on This Proposed Rule? early in the process of developing the submission of a petition for proposed regulation. reconsideration or other administrative In developing this proposal, we tried We have analyzed this proposed rule proceedings before parties may file suit to address the concerns of all our in accordance with the principles and in court. stakeholders. Your comments will help criteria set forth in Executive Order us improve this proposed rule. We 13132 and have determined that this g. Plain Language invite you to provide different views on proposal does not have sufficient Executive Order 12866 requires each options we propose, new approaches we Federal implications to warrant agency to write all rules in plain haven’t considered, new data, how this consultation with State and local language. Application of the principles proposed rule may affect you, or other officials or the preparation of a of plain language includes consideration relevant information. We welcome your Federalism summary impact statement. of the following questions: views on all aspects of this proposed The proposal would not have any • Have we organized the material to rule, but request comments on specific substantial impact on the States, or on suit the public’s needs? issues throughout this document. Your the current Federal-State relationship, • Are the requirements in the rule comments will be most effective if you or on the current distribution of power clearly stated? follow the suggestions below: and responsibilities among the various • local officials. Does the rule contain technical —Explain your views and reasoning as language or jargon that isn’t clear? clearly as possible d. Unfunded Mandates Reform Act • Would a different format (grouping —Provide solid technical and cost data Section 202 of the Unfunded and order of sections, use of headings, to support your views Mandates Reform Act of 1995 (UMRA) paragraphing) make the rule easier to —If you estimate potential costs, requires Federal agencies to prepare a understand? explain how you arrived at the written assessment of the costs, benefits • Would more (but shorter) sections estimate and other effects of proposed or final be better? —Tell us which parts of the proposal rules that include a Federal mandate • Could we improve clarity by adding you support, as well as those with likely to result in the expenditure by tables, lists, or diagrams? which you disagree State, local or tribal governments, in the • What else could we do to make the —Provide specific examples to illustrate aggregate, or by the private sector, of rule easier to understand? your concerns more than $100 million in any one year If you have any responses to these —Offer specific alternatives ($100 million adjusted annually for questions, please include them in your —Refer your comments to specific inflation, with base year of 1995). comments on this proposal. sections of the proposal, such as the
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units or page numbers of the Will the Agency Consider Late PART 571—[Amended] preamble, or the regulatory sections Comments? —Be sure to include the name, date, and 1. The authority citation for Part 571 We will consider all comments that docket number with your comments continues to read as follows: Docket Management receives before the Authority: 49 U.S.C. 322, 30111, 30115, How Do I Prepare and Submit close of business on the comment 30117 and 30166; delegation of authority at Comments? closing date indicated above under 49 CFR 1.50. DATES. To the extent possible, we will Your comments must be written and also consider comments that Docket 2. Section 571.213 would be amended in English. To ensure that your Management receives after that date. If by: comments are correctly filed in the Docket Management receives a comment a. Revising the definition of ‘‘child Docket, please include the docket too late for us to consider it in restraint system’’ in S4; number of this document in your developing a final rule (assuming that comments. b. Revising the introductory text of one is issued), we will consider that S5.1.2; Your comments must not be more comment as an informal suggestion for c. Adding S5.1.2.1 and S5.1.2.2; than 15 pages long (49 CFR 553.21). We future rulemaking action. established this limit to encourage you d. Revising the introductory text of to write your primary comments in a How Can I Read the Comments S5.2.1.2, revising S6.1.1(a)(1), S6.1.1(d), concise fashion. However, you may Submitted by Other People? and the introductory text of S6.2.3; attach necessary additional documents You may read the comments received e. Revising S7, and S9.1(c); to your comments. There is no limit on by Docket Management at the address f. Adding S9.1(d), S9.1(e) and S9.1(f); the length of the attachments. given above under ADDRESSES. The g. Revising S9.3, S10.2.1(b)(2), Please submit two copies of your hours of the Docket are indicated above S10.2.1(c)(1)(i), S10.2.1(c)(1)(i), comments, including the attachments, in the same location. introductory text, S10.21(c)(1)(i)(B) and to Docket Management at the address You may also see the comments on S10.2.1(c)(2) and S10.2.2(c)(2); and, given above under ADDRESSES. the Internet. To read the comments on h. Revising Figure 2. Comments may also be submitted to the Internet, take the following steps: The revised and added text and figure the docket electronically by logging onto (1) Go to the Docket Management would read as follows: the Dockets Management System Web System (DMS) Web page of the site at http://dms.dot.gov. Click on § 571.213 Standard No. 213, Child restraint Department of Transportation (http:// systems. ‘‘Help & Information’’ or ‘‘Help/Info’’ to dms.dot.gov/). obtain instructions for filing the * * * * * document electronically. (2) On that page, click on ‘‘search.’’ S4. Definitions. (3) On the next page (http:// How Can I Be Sure That My Comments Child restraint system means any dms.dot.gov/search/), type in the four- Were Received? device, except Type I or Type II seat digit docket number shown at the belts, designed for use in a motor If you wish Docket Management to beginning of this document. Example: If vehicle or aircraft to restrain, seat, or notify you upon its receipt of your the docket number were ‘‘NHTSA– position children who weigh 65 pounds comments, enclose a self-addressed, 2002–1234,’’ you would type ‘‘1234.’’ or less. After typing the docket number, click on stamped postcard in the envelope * * * * * containing your comments. Upon ‘‘search.’’ receiving your comments, Docket S5.1.2 Injury criteria. When tested in (4) On the next page, which contains accordance with S6.1 and with the test Management will return the postcard by docket summary information for the mail. dummies specified in S7, each child docket you selected, click on the desired restraint system manufactured before How Do I Submit Confidential Business comments. You may download the November 1, 2004, shall— Information? comments. However, since the comments are imaged documents, * * * * * If you wish to submit any information instead of word processing documents, S5.1.2.1 When tested in accordance under a claim of confidentiality, you the downloaded comments are not word with S6.1 and with the test dummies should submit three copies of your searchable. specified in S7, each child restraint system manufactured on or after complete submission, including the Please note that even after the November 1, 2004, shall— information you claim to be confidential comment closing date, we will continue business information, to the Chief to file relevant information in the (a) Limit the resultant acceleration at Counsel, NHTSA, at the address given Docket as it becomes available. Further, the location of the accelerometer above under FOR FURTHER INFORMATION some people may submit late comments. mounted in the test dummy head such CONTACT. In addition, you should Accordingly, we recommend that you that, for any two points in time, t1 and submit two copies, from which you periodically check the Docket for new t2, during the event which are separated have deleted the claimed confidential material. Upon receiving the comments, by not more than a 15 millisecond time business information, to Docket the docket supervisor will return the interval and where t1 is less than t2, the Management at the address given above postcard by mail. maximum calculated head injury under ADDRESSES. When you send a criterion (HIC15) shall not exceed the comment containing information List of Subjects in 49 CFR Part 571 limits specified in the table in this claimed to be confidential business S5.1.2.1, determined using the resultant Motor vehicle safety, Reporting and information, you should include a cover head acceleration at the center of gravity recordkeeping requirements, Tires. letter setting forth the information of the dummy head, ar, expressed as a specified in our confidential business In consideration of the foregoing, multiple of g (the acceleration of information regulation. (49 CFR part NHTSA proposes to amend 49 CFR Part gravity), calculated using the 512.) 571 as set forth below. expression:
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25. t thoracic instrumentation shall not (c) Compression deflection of the 1 2 HIC = ∫ adt () t− t exceed the limits specified in the table sternum relative to the spine, as − 21 in this S5.1.2.1, except for intervals determined by instrumentation, shall tt21 t1 whose cumulative duration is not more not exceed the limits specified in the (b) The resultant acceleration than 3 milliseconds. table in this S5.1.2.1. calculated from the output of the
TABLE TO S5.1.2.1(a)–(c).—INJURY LIMITS FOR HEAD AND THORAX
Maximum cal- Maximum chest culated HIC15 Maximum thoracic Test dummy values G’s (S5.1.2.1(b)) deflection (S5.1.2.1(a)) (S5.1.2.1(c))
12-month-old subpart R ...... 390 50 g’s N/A. 3-year-old subpart P ...... 570 55 g’s 34 mm (1.3 in). 6-year-old subpart N ...... 700 60 g’s 40 mm (1.6 in). Weighted 6-year-old ...... 700 60 g’s 42 mm (1.65 in).
(d) Neck injury. For the measurement (2) During the event, the axial force the table to this S5.1.2.1(d) for each of of neck injury, the following injury (Fz) can be either in tension or the dummies used in the test. criteria shall be met when calculated extension, the occipital condyle bending (3) At each point in time, only one of based on data recorded for the first 300 moment (Mocy) can be in either flexion the four loading conditions occurs. The milliseconds of the sled pulse. or extension. This results in four Nij value corresponding to that loading (1) The shear force (Fx), axial force possible loading conditions for Nij: condition is computed and the three (Fz), and bending moment (My) shall be tension-extension (Nte), tension-flexion remaining loading modes shall be measured by the dummy upper neck (Ntf), compression-extension (Nce), or considered to have a value of zero. The load cell for 300 milliseconds, as compression-flexion (Ncf). For the equation for calculating each Nij loading specified in S5.1.2.1(d). Shear force, calculation of Nij using the equation set condition is given by: axial force, and bending moment shall forth in S5.1.2.1(d)(3), the critical be filtered for Nij purposes at SAE J211/ Nij = (Fz/Fzc) + (Mocy/Myc) 1 rev. Mar95 Channel Frequency Class values, Fzc and Myc, are as specified in (4) None of the four Nij values shall 600 (see 49 CFR 571.208, S4.7). exceed 1.0 at any time during the event.
TABLE TO S5.1.2.1(d)—CRITICAL VALUES FOR CALCULATING NIJ
Myc when a Myc when an Fzc when Fz flexion mo- extension mo- Test dummy Fzc when Fz is in compres- ment exists at ment exists at is in tension sion the occipital the occipital condyle condyle
12-Month-Old Subpart R ...... 1460 N 1460 N 43 Nm 17 Nm (328 lbf) (328 lbf) (32 lbf-ft) (13 lbf-ft) 3-Year-Old Subpart P ...... 2340 N 2120 N 68 Nm 30 Nm (526 lbf) (477 lbf) (50 lbf-ft) (22 lbf-ft) 6-Year-Old Subpart N ...... 3096 N 2800 N 93 Nm 42 Nm (696 lbf) (629 lbf) (69 lbf-ft) (31 lbf-ft) Weighted 6-Year-Old ...... 3096 N 2800 N 93 Nm 42 Nm (696 lbf) (629 lbf) (69 lbf-ft) (31 lbf-ft)
S5.1.2.2 At the manufacturer’s option after November 1, 2004, must be tested S5.2.1.1. A front-facing child restraint (with said option irrevocably selected using the test dummies specified in system is not required to comply with prior to, or at the time of, certification S7.1.2. S5.2.1.1 if the target point on either side of the restraint), child restraint systems * * * * * of the dummy’s head is below a manufactured before November 1, 2004 S5.2 Force distribution. horizontal plane tangent to the top of— may be tested to the requirements of S5 * * * * * * * * * * while using the test dummies specified S5.2.1.2 The applicability of the S6.1.1 Test conditions. in S7.1.2 of this standard according to requirements of S5.2.1.1 to a front- (a) Test devices. the criteria for selecting test dummies facing child restraint, and the (1) The test device for testing add-on specified in that paragraph. That conformance of any child restraint other restraint systems to frontal barrier paragraph specifies the dummies used than a car bed to those requirements, is impact simulations is a standard seat to test child restraint systems determined using the largest of the test assembly consisting of a simulated manufactured on or after November 1, dummies specified in S7 for use in vehicle bench seat, with three seating 2004. If a manufacturer selects the testing that restraint, provided that the positions, which is described in dummies specified in S7.1.2 to test its 6-year-old dummy described in subpart Drawing Package SAS–100–1000 with product, the injury criteria specified by I or in subpart N of part 572 of this Addendum lll: Seat Base Weldment S5.1.2.1 of this standard must be met. chapter is not used to determine the (consisting of drawings and a bill of Child restraints manufactured on or applicability of or compliance with materials), dated lll (will be
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incorporated by reference in § 571.5). accordance with S5.5 for use either by test dummy conforming to part 572 The assembly is mounted on a dynamic children in a specified mass range that subpart K. test platform so that the center SORL of includes any children having a mass (b) A child restraint that is the seat is parallel to the direction of the greater than 5 but not greater than 10 kg, recommended by its manufacturer in test platform travel and so that or by children in a specified height accordance with S5.5 for use either by movement between the base of the range that includes any children whose children in a specified mass range that assembly and the platform is prevented. height is greater than 650 mm but not includes any children having a mass * * * * * greater than 850 mm, is tested with a greater than 5 but not greater than 10 kg, (d)(1) When using the test dummies newborn test dummy conforming to part or by children in a specified height specified in 49 CFR part 572, subparts 572 subpart K, and a 9-month-old test range that includes any children whose C, I, J, or K, performance tests under dummy conforming to part 572 subpart height is greater than 650 mm but not S6.1 are conducted at any ambient J. greater than 850 mm, is tested with a temperature from 19° C to 26° C and at (c) A child restraint that is newborn test dummy conforming to part any relative humidity from 10 percent to recommended by its manufacturer in 572 subpart K, and a 12-month-old test 70 percent. accordance with S5.5 for use either by dummy conforming to part 572 subpart (2) When using the test dummies children in a specified mass range that R. specified in 49 CFR part 572, subparts includes any children having a mass (c) A child restraint that is N, P or R, performance tests under S6.1 greater than 10 kg but not greater than recommended by its manufacturer in are conducted at any ambient 18 kg, or by children in a specified accordance with S5.5 for use either by temperature from 20.6° C to 22.2° C and height range that includes any children children in a specified mass range that at any relative humidity from 10 percent whose height is greater than 850 mm but includes any children having a mass greater than 10 kg but not greater than to 70 percent. not greater than 1100 mm, is tested with a 9-month-old test dummy conforming 18 kg, or by children in a specified * * * * * to part 572 subpart J, and a 3-year-old height range that includes any children S6.2.3 Pull the sling tied to the test dummy conforming to part 572 whose height is greater than 850 mm but dummy restrained in the child restraint subpart C and S7.2, provided, however, not greater than 1100 mm, is tested with system and apply the following force: 50 that the 9-month-old dummy is not used a 12-month-old test dummy conforming N for a system tested with a newborn to test a booster seat. to part 572 subpart R, and a 3-year-old dummy; 90 N for a system tested with (d) A child restraint that is test dummy conforming to part 572 a 9-month-old dummy; 90 N for a recommended by its manufacturer in subpart P and S7.2, provided, however, system tested with a 12-month-old accordance with S5.5 for use either by that the 12-month-old dummy is not dummy; 200 N for a system tested with children in a specified mass range that used to test a booster seat. a 3-year-old dummy; 270 N for a system includes any children having a mass (d) A child restraint that is tested with a 6-year-old dummy; or 350 greater than 18 kg, or by children in a recommended by its manufacturer in N for a system tested with a weighted specified height range that includes any accordance with S5.5 for use either by 6-year-old dummy. The force is applied children whose height is greater than children in a specified mass range that in the manner illustrated in Figure 4 1100 mm, is tested with a 6-year-old includes any children having a mass and as follows: child dummy conforming to part 572 greater than 18 kg, or by children in a * * * * * subpart I. specified height range that includes any S7 Test dummies. (Subparts (e) A child restraint that is children whose height is greater than referenced in this section are of part 572 manufactured on or after [date to be 1100 mm, is tested with a 6-year-old of this chapter.) inserted would be the date 180 days child dummy conforming to part 572 S7.1 Dummy selection. Select any after publication of a final rule subpart N. dummy specified in S7.1.1, S7.1.2 or incorporating a weighted 6-year-old (e) A child restraint that is S7.1.3, as appropriate, for testing dummy into Part 572], and that is manufactured on or after [date to be systems for use by children of the height recommended by its manufacturer in inserted would be the date 180 days and mass for which the system is accordance with S5.5 for use either by after publication of a final rule recommended in accordance with S5.5. children in a specified mass range that incorporating a weighted 6-year-old A child restraint that meets the criteria includes any children having a mass dummy into Part 572], and that is in two or more of the following greater than 22.7 kg (50 lb), or by recommended by its manufacturer in paragraphs in S7 may be tested with any children in a specified height range that accordance with S5.5 for use either by of the test dummies specified in those includes any children whose height is children in a specified mass range that paragraphs. greater than 1100 mm, is tested with a includes any children having a mass S7.1.1 Child restraints that are weighted 6-year-old child dummy greater than 22.7 kg (50 lb), or by manufactured before November 1, 2004, conforming to part 572 Subpart [to be children in a specified height range that are subject to the following provisions. determined]. includes any children whose height is (a) A child restraint that is S7.1.2 Child restraints that are greater than 1100 mm, is tested with a recommended by its manufacturer in manufactured on or after November 1, weighted 6-year-old child dummy accordance with S5.5 for use either by 2004, are subject to the following conforming to Part 572 Subpart [to be children in a specified mass range that provisions. determined]. includes any children having a mass of (a) A child restraint that is S7.1.3 Voluntary use of alternative not greater than 5 kg, or by children in recommended by its manufacturer in dummies. At the manufacturer’s option a specified height range that includes accordance with S5.5 for use either by (with said option irrevocably selected any children whose height is not greater children in a specified mass range that prior to, or at the time of, certification than 650 mm, is tested with a newborn includes any children having a mass of of the restraint), child restraint systems test dummy conforming to part 572 not greater than 5 kg, or by children in manufactured before November 1, 2004 subpart K. a specified height range that includes may be tested to the requirements of S5 (b) A child restraint that is any children whose height is not greater while using the test dummies specified recommended by its manufacturer in than 650 mm, is tested with a newborn in S7.1.2 according to the criteria for
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selecting test dummies specified in that testing under this standard, dummies at the dummy thorax in the midsagittal paragraph. Child restraints must be conditioned at any ambient plane of the dummy. For a child manufactured on or after November 1, temperature from 19°C to 25.5°C and at restraint system with a fixed or movable 2004, must be tested using the test any relative humidity from 10 percent to surface described in S5.2.2.2, which is dummies specified in S7.1.2. 70 percent, for at least 4 hours. being tested under the conditions of test * * * * * S9.3.2 When using the test dummies configuration II, do not attach any of the S9.1 Type of clothing. conforming to Part 572 Subparts N, P, R, child restraint belts unless they are an * * * * * or [subpart on the weighted 6-year-old integral part of the fixed or movable (c) 12-month-old dummy (49 CFR part dummy to be inserted], prepare the surface. For all other child restraint 572, subpart R). When used in testing dummies as specified in this paragraph. systems and for a child restraint system under this standard, the dummy Before being used in testing under this with a fixed or movable surface that is specified in 49 CFR part 572, subpart R, standard, dummies must be conditioned being tested under the conditions of test ° is clothed in a cotton-polyester based at any ambient temperature from 20.6 configuration I, attach all appropriate ° ° ° tight fitting sweat shirt with long sleeves to 22.2 C (69 to 72 F) and at any child restraint belts and tighten them as and ankle long pants whose combined relative humidity from 10 percent to 70 specified in S6.1.2. Attach all weight is not more than 0.25 kg (.55 lb). percent, for at least 4 hours. appropriate vehicle belts and tighten (d) Hybrid II three-year-old and * * * * * them as specified in S6.1.2. Position Hybrid II six-year-old dummies (49 CFR S10.2.1 * * * each movable surface in accordance part 572, subparts C and I). When used (b) * * * with the instructions that the in testing under this standard, the (2) When testing rear-facing child manufacturer provided under S5.6.1 or dummies specified in 49 CFR part 572, restraint systems, place the newborn, 9- S5.6.2. subparts C and I, are clothed in thermal month-old or 12-month-old dummy in * * * * * knit, waffle-weave polyester and cotton the child restraint system so that the BILLING CODE 4910–59–P underwear or equivalent, a size 4 long- back of the dummy torso contacts the sleeved shirt (3-year-old dummy) or a back support surface of the system. For (2) When testing rear-facing child size 5 long-sleeved shirt (6-year-old a child restraint system which is restraint systems, extend the dummy’s dummy) having a mass of 0.090 kg, a equipped with a fixed or movable arms vertically upwards and then rotate size 4 pair of long pants having a mass surface described in S5.2.2.2 which is each arm downward toward the of 0.090 kg, and cut off just far enough being tested under the conditions of test dummy’s lower body until the arm above the knee to allow the knee target configuration II, do not attach any of the contacts a surface of the child restraint to be visible, and size 7M sneakers (3- child restraint belts unless they are an system or the standard seat assembly in year-old dummy) or size 121⁄2M integral part of the fixed or movable the case of an add-on child restraint sneakers (6-year-old dummy) with surface. For all other child restraint system, or the specific vehicle shell or rubber toe caps, uppers of dacron and systems and for a child restraint system the specific vehicle, in the case of a cotton or nylon and a total mass of 0.453 with a fixed or movable surface which built-in child restraint system. Ensure kg. is being tested under the conditions of that no arm is restrained from (e) Hybrid III 3-year-old dummy (49 test configuration I, attach all movement in other than the downward CFR part 572, subpart P). When used in appropriate child restraint belts and direction, by any part of the system or testing under this standard, the dummy tighten them as specified in S6.1.2. the belts used to anchor the system to specified in 49 CFR part 572, subpart P, Attach all appropriate vehicle belts and the standard seat assembly, the specific is clothed in a cotton-polyester based tighten them as specified in S6.1.2. shell, or the specific vehicle. tight fitting sweat shirt with long sleeves Position each movable surface in * * * * * and ankle long pants whose combined accordance with the instructions that S10.2.2 * * * weight is not more than 0.25 kg (.55 lb), the manufacturer provided under S5.6.1 and size 7M sneakers with rubber toe or S5.6.2. If the dummy’s head does not (c) * * * caps, uppers of dacron and cotton or remain in the proper position, tape it (2) The back of the vehicle seat in the nylon and a total mass of 0.453 kg. against the front of the seat back surface specific vehicle shell or the specific (f) Hybrid III 6-year-old dummy (49 of the system by means of a single vehicle, in the case of a built-in system, CFR part 572, subpart N) and Hybrid III thickness of 6 mm-wide paper masking first against the dummy crotch and then weighted 6-year-old dummy (40 CFR tape placed across the center of the at the dummy thorax in the midsagittal part 572, subpartll). When used in dummy’s face. plane of the dummy. For a child testing under this standard, the dummy (c)(1)(i) When testing forward-facing restraint system with a fixed or movable specified in 49 CFR part 572, subpart N, child restraint systems, extend the arms surface described in S5.2.2.2, which is and in Subpart [to be determined], is of the 9-month-old or 12-month-old test being tested under the conditions of test clothed in a light-weight cotton stretch dummy as far as possible in the upward configuration II, do not attach any of the short-sleeve shirt and above-the-knee vertical direction. Extend the legs of the child restraint belts unless the belt is an pants, and size 12.5M sneakers with 9-month-old or 12-month-old test integral part of the fixed or movable rubber toe caps, uppers of dacron and dummy as far as possible in the forward surface. For all other child restraint cotton or nylon and a total mass of 0.453 horizontal direction, with the dummy systems and for a child restraint system kg. feet perpendicular to the centerline of with a fixed or movable surface that is * * * * * the lower legs. Using a flat square being tested under the conditions of test S9.3 Preparing dummies. (Subparts surface with an area of 2,580 square configuration I, attach all appropriate referenced in this section are of Part 572 mm, apply a force of 178 N, child restraint belts and tighten them as of this chapter.) perpendicular to: specified in S6.1.2. Attach all S9.3.1 When using the test dummies (B) The back of the vehicle seat in the appropriate vehicle belts and tighten conforming to part 572 subparts C, I, J, specific vehicle shell or the specific them as specified in S6.1.2. Position or K, prepare the dummies as specified vehicle, in the case of a built-in system, each movable surface in accordance in this paragraph. Before being used in first against the dummy crotch and then with the instructions that the
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manufacturer provided under S5.6.1 or S5.6.2. * * * * *
Issued on April 24, 2002. DEPARTMENT OF TRANSPORTATION SUMMARY: The Transportation Recall Stephen R. Kratzke, Enhancement, Accountability and Associate Administrator for Safety National Highway Traffic Safety Documentation Act of 2000 directed Performance Standards. Administration NHTSA to initiate a rulemaking for the [FR Doc. 02–10507 Filed 4–25–02; 10:00 am] purpose of improving the safety of child 49 CFR Part 571 restraints and specified various BILLING CODE 4910–59–C elements that must be considered in the [Docket No. 02–12151] rulemaking. NHTSA has issued two RIN 2127–AI83 notices of proposed rulemaking that together address all but side and rear Federal Motor Vehicle Safety impact protection requirements for Standards; Child Restraint Systems children in child restraint systems. AGENCY: National Highway Traffic NHTSA is addressing side impact Safety Administration (NHTSA), protection in an ANPRM, instead of a Department of Transportation. notice of proposed rulemaking, because there are uncertainties in too many areas ACTION: Advance notice of proposed to issue a proposal now. These areas rulemaking (ANPRM). include: the determination of child
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injury mechanisms in side impacts, and a. Absence of Any Requirement Worldwide the current Federal motor vehicle safety crash characteristics associated with b. Consumer Ratings Programs standards requires, including the use of serious and fatal injuries to children in IV. Performance in a Dynamic Test dynamic tests that— child restraints; development of test a. Should Head Excursion Be Limited in a (A) Replicate an array of crash conditions, 20 mph Dynamic Test (‘‘No Wall Test’’)? such as side-impact crashes and rear-impact procedures, a suitable test dummy and b. Should HIC Be Limited in a 15 mph crashes; and appropriate injury criteria; and Dynamic Test with a Rigid Side (B) Reflect the designs of passenger motor identification of cost beneficial Structure (‘‘Wall Test’’)? vehicles as of the date of enactment of this countermeasures. Uncertainties in these c. Are Both Tests Needed? Act; areas, together with the statutory V. Countermeasure Development (2) Whether to require the use of schedule for this rulemaking, make it a. Countermeasures That Better Retain And anthropomorphic test devices that— difficult for the agency to assess and Cushion The Child’s Head (A) Represent a greater range of sizes of make judgments concerning the benefits b. Countermeasures That Keep The Child children including the need to require the and costs of a rulemaking on side Restraint From Moving Laterally In A use of an anthropomorphic test device that is Side Impact representative of a ten-year-old child; and impact protection. Accordingly, we c. Countermeasures That Reduce The Local (B) Are Hybrid III anthropomorphic test believe that the most appropriate course Stiffness Of Vehicle Components Areas devices; of action at this point is to issue this Where Children Are Most Likely To Hit (3) Whether to require improved protection ANPRM to obtain additional Their Heads. from head injuries in side-impact and rear- information that will help us decide VI. Specific Issues On Side Impact On Which impact crashes; whether it is possible and appropriate to Comments Are Requested (4) How to provide consumer information issue a proposal in the near future and/ a. Crash Characteristics on the physical compatibility of child or identify additional work that needs to b. Child Injury Mechanisms restraints and vehicle seats on a model-by- c. Test Procedures model basis; be done. 1. Are The Approaches Reasonable? Also in response to the Act, this (5) Whether to prescribe clearer and 2. ISO simpler labels and instructions required to be ANPRM requests comments on the d. Performance Requirements placed on child restraints; appropriateness of proposing to e. Test Dummies (6) Whether to amend Federal Motor incorporate a rear impact test procedure f. Design Restriction Vehicle Safety Standard No. 213 (49 CFR into Standard No. 213, for rear-facing g. Consumer Acceptance 571.213) to cover restraints for children child restraint systems. h. Potentially Affected Child Restraints weighing up to 80 pounds; i. Potential Cost DATES: You should submit your (7) Whether to establish booster seat j. Potential Benefits performance and structural integrity comments early enough to ensure that VII. Rear Impact Protection Docket Management receives them not requirements to be dynamically tested in 3- VIII. Regulatory Analyses point lap and shoulder belts; later than July 1, 2002. IX. Submission of Comments (8) Whether to apply scaled injury criteria ADDRESSES: You may submit your performance levels, including neck injury, comments in writing to: Docket I. Background developed for Federal Motor Vehicle Safety Management, Room PL–401, 400 This document requests comments on Standard No. 208 to child restraints and Seventh Street, SW., Washington, DC the agency’s work in developing a booster seats covered by in [sic] Federal 20590. Alternatively, you may submit possible side impact protection Motor Vehicle Safety Standard No. 213; and your comments electronically by logging requirement for child restraint systems (9) Whether to include [a] child restraint in onto the Docket Management System each vehicle crash tested under the New Car and on refinements to the approach the Assessment Program. Web site at http://dms.dot.gov. Click on agency has taken thus far. The agency’s (c) Report to Congress.—If the Secretary ‘‘Help & Information’’ or ‘‘Help/Info’’ to work on this subject was prompted by does not incorporate any element described view instructions for filing your section 14 of the Transportation Recall in subsection (b) in the final rule, the comments electronically. Regardless of Enhancement, Accountability and Secretary shall explain, in a report to the how you submit your comments, you Documentation Act (the TREAD Act) Senate Committee on Commerce, Science, should mention the docket number of (November 1, 2000, Pub. L. 106–414, and Transportation and the House of this document. You may call Docket 114 Stat. 1800). Section 14 directs the Representatives Committee on Commerce Management at 202–366–9324. You may agency to initiate a rulemaking for the submitted within 30 days after issuing the visit the Docket from 10:00 a.m. to 5:00 final rule, specifically why the Secretary did purpose of improving the safety of child not incorporate any such element in the final p.m., Monday through Friday. restraints and specifies elements that rule. FOR FURTHER INFORMATION CONTACT: For the agency is to consider in that (d) Completion.— Notwithstanding any non-legal issues, you may call Mike rulemaking. The section directed other provision of law, the Secretary shall Huntley of the NHTSA Office of NHTSA to initiate that rulemaking by complete the rulemaking required by Crashworthiness Standards, at 202–366– November 1, 2001, and to complete it by subsection (a) not later than 24 months after 0029. issuing a final rule or taking other action the date of the enactment of this Act. For legal issues, you may call Deirdre by November 1, 2002. Federal Motor Vehicle Safety Fujita of the NHTSA Office of Chief The relevant provisions in section 14 Standard No. 213, ‘‘Child Restraint Counsel at 202–366–2992. are as follows: Systems’’ (49 CFR 571.213) regulates the You may send mail to both of these (a) In General.—Not later than 12 months performance of a child restraint system officials at the National Highway Traffic after the date of enactment of this Act, the in dynamic tests involving a 30 mph Safety Administration, 400 Seventh St., Secretary of Transportation shall initiate a velocity change, representative of a SW., Washington, DC 20590. rulemaking for the purpose of improving the frontal impact. To protect children, the SUPPLEMENTARY INFORMATION: safety of child restraints, including standard limits the amount of force that minimizing head injuries from side impact can be exerted on the head and chest of Table of Contents collisions. a child test dummy during the dynamic I. Background (b) Elements for Consideration.—In the II. Side Impact Safety Problem rulemaking required by subsection (a), the testing. It also limits the amount of a. Fatalities Secretary shall consider— excursion of head and knee excursion in b. Injuries (1) Whether to require more those tests to reduce the possibility that III. Current Regulatory Approaches comprehensive tests for child restraints than children in child restraint systems
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might contact vehicle interior surfaces Notwithstanding these limitations, we 2000. Child occupant fatalities, 0 to 8 and be injured during a frontal crash. believe we have made progress toward years old, accounted for approximately Additional performance and labeling developing a potential regulatory 3 percent of all passenger vehicle requirements are also specified in the proposal to improve the side impact occupant fatalities in each of those standard. performance of child restraint systems. years. Partly in response to the TREAD Act We have analyzed crash data and have Despite the slight increase in total and partly in fulfillment of agency plans developed a dynamic side impact test. passenger vehicle occupant fatalities, to upgrade Standard No. 213, NHTSA We have identified possible the overall motor vehicle crash fatality has issued two notices of proposed countermeasures. However, we have not rate has been declining, from 1.9 rulemaking (NPRM) addressing all evaluated the countermeasures to fatalities per 100 million vehicle miles elements specified in section 14 except determine their feasibility and benefit, traveled (VMT) in 1991 to 1.5 fatalities for side and rear impact protection. On although we will study potential per 100 million VMT in 2000. Part of November 2, 2001, the agency issued an countermeasures for rear-facing the decline in the fatality rate is NPRM proposing to improve the restraints in 2002. Information from that attributable to the increasing use of instructions and labels required on study will help us further evaluate the occupant restraints. The first National child restraints. (66 FR 55623). The course of action that the agency should Occupant Protection Use Survey second NPRM has been issued pursue in this rulemaking. From the (NOPUS), in 1994, estimated that 58 concurrently with today’s document, information and analysis that we have, percent of passenger vehicle front seat and is published in today’s edition of it appears that if we were to issue a occupants were restrained. By December the Federal Register. In it, the agency is notice of proposed rulemaking on side 1999, this rate had increased to 67 proposing to incorporate the following impact, it might involve significantly percent. Correspondingly, the elements into the standard: (a) An higher costs per equivalent life saved percentage of unrestrained passenger updated bench seat used to dynamically than those in most NHTSA vehicle vehicle occupant fatalities decreased, test add-on child restraint systems; (b) a safety rulemakings. from 67 percent in 1991 to 55 percent sled pulse that provides a wider test Because of all these factors, we in 2000, although unrestrained corridor; (c) improved child test believe that the most appropriate course occupants still make up the majority of dummies; (d) expanded applicability to of action at this point is to issue this passenger vehicle occupant fatalities. child restraint systems recommended ANPRM to obtain additional Similarly, the restraining of children has for use by children weighing up to 65 information that will help us decide also increased. NOPUS shows the pounds; and (e) new or revised injury whether it is possible and appropriate to percentage of children under 5 being criteria to assess the dynamic issue a proposal in the near future and/ restrained increased from 66 percent in performance of child restraints. or identify additional work that needs to 1994 to 92 percent in 2000. This NHTSA is addressing side impact be done. Through issuing this ANPRM, increase is reflected in FARS data. The protection in an ANPRM, instead of a we hope to obtain more information percentage of fatally injured children, 0 notice of proposed rulemaking, because about matters such as the harm to to 8 years old, who were unrestrained, there are uncertainties in too many areas restrained children in side impacts, decreased from 61 percent in 1991 to 41 to issue a proposal now. These areas such as the child injury mechanisms percent in 2000. Unrestrained child include: (a) Crash characteristics and the crash characteristics associated occupants no longer are the majority of associated with serious and fatal with serious and fatal injuries. We seek child occupants killed in motor vehicle injuries to children in child restraints comment on the suitability of the test crashes, but still constitute a large and the child injury mechanisms in side procedures we are considering, of the percentage of the overall total. impacts, and; (b) development of test Prompted by a media safety campaign dummy we might use in a test procedures, a suitable test dummy and that began in 1996 to move children to procedure, and on possible injury appropriate injury criteria; and (c) the rear seat, the rear seat has replaced criteria. We want cost, benefit and other identification of cost beneficial the front seat as the most frequently information on possible countermeasures. The schedule chosen seating position for children in countermeasures that would be effective specified in the TREAD Act for passenger vehicles. This change in front in improving side impact protection, initiating and completing this versus rear seat exposure has particularly the possible rulemaking has limited the amount and contributed to a significant change in countermeasures we have identified. As variety of information that the agency the distribution of child occupant could obtain, and testing that the agency a result of issuing this ANPRM, the fatalities within vehicles. A steep could conduct, to develop test agency anticipates receiving information decline in front seat child occupant procedures and injury criteria and that will improve its ability to assess the fatalities occurred in the last half of the identify possible countermeasures and merits of this rulemaking and thus aid 1990’s, with total front seat fatalities for examine their efficacy on child restraint the agency in making decisions about the age group dropping from 411 in performance. The agency has also been the future course of this rulemaking. 1995 to 239 in 2000 (a decrease of 42 hampered by a lack of specific accident II. Side Impact Safety Problem percent). Rear seat child occupant data on children in motor vehicle fatalities increased during that time crashes generally, and particularly in a. Fatalities period, from 463 in 1995 to 561 in 2000. side impact crashes. There are few Passenger vehicle occupant fatalities Thus, of those children (in known available data on how children are being in the United States, as reported in the seating positions; front seat versus rear injured and killed in side impacts (e.g., Fatality Analysis Reporting System seats), between 1995 and 2000, front to what degree injuries are caused by (FARS), for all ages, increased slightly (4 seat fatalities decreased by 172 and rear intrusion of an impacting vehicle or percent) over the period from 1991 to seat fatalities increased by 98, resulting other object). Together, these limitations 2000 (from 30,776 in 1991 to 31,910 in in an overall decrease of 74 fatalities. have made it difficult to assess and 2000). In comparison, fatalities The reduction in overall fatalities is the compare the benefits and costs of involving children in the age range 0 to result of the rear seat being a safer provisions that could be included in a 8 years old decreased slightly (3 environment and an increase in restraint rulemaking proposal on side impact. percent), from 923 in 1991 to 895 in use over those years.
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For passenger vehicle child occupants. For all ages, the percentage III. Current Regulatory Approaches occupants, ages 0 to 8 years old, data of unrestrained injured occupants a. Absence of Any Requirement from FARS for 1991–2000 show that, decreased from 27 percent of injured Worldwide regardless of whether the child was occupants in 1991 to 12 percent in 2000. seated in the front seat or second seat, The number of child occupants, 0 to 8 Currently, no country or region has a frontal and side crashes account for years old, who were injured and requirement specifying a minimum most child occupant fatalities. Fifty-one unrestrained decreased from 40,800 (31 level of performance for child restraints in a dynamic side impact simulation. percent of front seat child occupant percent of all injured child occupants) Efforts around the world to improve fatalities were in frontal crashes, and 31 in 1991 to 14,000 (12 percent of all child restraint safety have concentrated percent were in side impact crashes. injured) in 2000. This is a decrease of Rear impact crashes accounted for 4 on performance in frontal impacts 61 percent. Correspondingly, the because they account for more injuries percent of front seat child fatalities. For number of child occupants in this age rear seat child occupants, frontal and fatalities than any other crash mode group who were injured while impacts and side impact crashes and because the potential for restrained in a child restraint system or accounted for 44 percent and 42 percent countermeasure development is greater, of the fatalities, respectively, while rear in a lap and/or shoulder belt increased given the amount of available space in impact crashes accounted for 14 percent significantly during this time-period. which the crash forces can be of the fatalities. The number of child occupants injured mitigated.1 This focus also reflects the Seating position relative to the point while restrained by a child restraint rose fact that, for side crashes, (a) data are of impact is also a factor in side impact from 20,000 in 1991 to 37,000 in 2000, not widely available as to how children crash fatalities. For the 3,018 front seat an increase of 84 percent. The number are being injured and killed in side child fatalities, 22 percent were killed in of child occupants injured while impacts (e.g., to what degree injuries are near side impacts, i.e., they were in the restrained in a lap and/or shoulder belt caused by intrusion of an impacting outboard seating position on the rose from 48,200 in 1991 to 66,300 in vehicle or other object), (b) potential impacted side of the vehicle. Of the 2000, an increase of 38 percent. countermeasures for side impact 3,826 rear seat fatalities, 25 percent An examination of NASS- intrusion have not been developed, and (c) there is not a consensus on an involved near side impacts. Of the 682 Crashworthiness Data System (CDS) appropriate child test dummy and children ages 0 to 8 years old who were data over the 1991–2000 period yielded associated injury criteria for side impact killed in side impacts and were secured important insights regarding the type in child restraints, 64 percent (434) were testing. and severity of injuries to children in seated in the near side position. The motor vehicles crashes. First, children 0 b. Consumer Ratings Programs remaining 36 percent of the fatalities (248) for children in child restraints to 8 years old are most susceptible to Nonetheless, some entities around the were seated either in the middle seating head injuries. Fifty-seven percent of all world have focused attention on side position or in the ‘‘far side’’ position, injuries to child occupants in crashes impact safety by developing consumer i.e., the outboard seating position on the are head injuries (mostly scrapes, cuts information rating programs that assess opposite side from the point of impact. and concussions). Second, the majority child restraint performance in side of injuries to child occupants, even to impact tests. The European New Car b. Injuries the head, tend to be of very low severity. Assessment Program (Euro NCAP) was The number of occupants of passenger By use of the abbreviated injury scale established in 1997, and is funded by vehicles injured in motor vehicle (AIS 1 = minor injury through AIS 6 = governments, the European crashes in the United States, as reported maximum, untreatable, injury), an Commission, and consumer by National Automotive Sampling assessment of fatality risk may be made. organizations. Euro NCAP has System-General Estimates Systems Of all injuries reported for children 0 to (NASS–GES) for all ages, increased 8 years old, 91.6 percent of these 1 That effort has also culminated in a harmonized moderately (5 percent) over the period standard for an improved child restraint anchorage injuries were within the AIS 1 (or least system, which NHTSA incorporated into its from 1991 to 2000 (from 2,797,000 in severe) category. Another 4.6 percent regulations in 1999 (Federal Motor Vehicle Safety 1991 to 2,938,000 in 2000). In contrast, were of AIS 2 (moderate severity) Standard No. 225, 49 CFR 571.225). Standard No. for child occupants 0 to 8 years old, the category. The remaining 3.8 percent of 225 requires motor vehicle manufacturers to number injured decreased (7 percent), provide vehicles equipped with the child restraint injuries to child occupants fell within anchorage systems that are standardized and from 141,000 in 1991 to 132,000 in AIS 3 through AIS 6 (severe to independent of the vehicle seat belts. The new 2000. The number of child occupants, 0 untreatable) categories. This injury independent system has two lower anchorages, and to 8 years old, injured in motor vehicle distribution for child occupants one upper anchorage. Each lower anchorage crashes accounted for approximately 5 includes a rigid round rod or ‘‘bar’’ unto which a compares favorably with that for hook, a jaw-like buckle or other connector can be percent of all passenger vehicle occupants of all ages, for whom 88 snapped. The bars are located at the intersection of occupant injuries in each year. percent of the injuries were within the the vehicle seat cushion and seat back. The upper As in the case of fatalities, despite the anchorage is a ring-like object to which the upper AIS 1 category, 8.0 percent were of AIS moderate increase in the number of tether of a child restraint system can be attached. 2 category, and 3.9 percent fell within injured passenger vehicle occupants, the (The system is widely known as the ‘‘LATCH AIS 3 through AIS 6 categories. system,’’ an acronym developed by manufacturers overall motor vehicle injury rate has and retailers for ‘‘lower anchors and tether for been declining. In 1991, the number of Approximately 16 percent of the children.’’) The LATCH system is required to be persons injured in motor vehicle crashes injuries to children were sustained from installed at two rear seating positions. In addition, side impact crashes. Although detailed a tether anchorage is required at a third position. per 100 million VMT was 143. By 1999, By requiring an easy-to-use anchorage system that the injury rate had declined to 120 per information of specific injury is independent of the vehicle seat belts, NHTSA’s 100 million VMT, a drop of 16 percent. mechanisms sustained by children in standard makes possible more effective child The increased use of occupant restraints this collision mode is somewhat restraint installation and thereby increases child lacking, overall trends of susceptibility restraint effectiveness and child safety. The is reflected in the declining number of standard is estimated to save 36 to 50 lives unrestrained injured occupants and to head injury is consistent for side annually, and prevent 1,231 to 2,929 injuries. See increasing numbers of restrained impact. 64 FR 10786; March 5, 1999.
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developed a protocol for rating vehicles ranked in part on their ability to prevent a 20 mph crash. When tested in this equipped with child restraints in frontal the dummy’s head from hitting the door. fashion, each child restraint would have and side impacts. The protocol is being been required to retain the test dummy IV. Performance in a Dynamic Test used in Europe. (This is separate from within the system, limit head motion to the performance standard for child While the child’s head seems to be the 19 inches in each lateral direction restraints that has been issued by the area most affected in side impact measured from the exterior surface of Economic Commission for European crashes, the agency has not been able to the dummy’s head, and suffer no loss of (ECE), ECE Regulation R44.2) In the confirm whether the majority of injuries structural integrity.3 Euro NCAP side impact test protocol, and fatalities occur primarily due to a. Should Head Excursion Be Limited in vehicles are impacted with a moving direct head contact with the vehicle a 20 mph Dynamic Test (‘‘No Wall deformable barrier traveling at 30 mph interior or other objects in the vehicle, Test’’)? at a 90-degree angle. An 18-month-old or whether these injuries and fatalities dummy and a 3-year-old dummy are are a result of non-contact, inertial We have been considering the merits used in the evaluation, neither of which loadings on the head and neck structure. of a dynamic test requirement was specifically designed to evaluate To address these injuries and fatalities, replicating a side impact, using a 20 performance in side impacts. The the agency has been considering two mph velocity change (Figure 1 of this vehicle is rated on dummy head side impact performance tests for child preamble depicts the pulse we are containment, resultant head restraints. The agency has assumed that considering for the 20 mph test). This acceleration, and chest acceleration. child restraints that perform speed is consistent with the speed used The New South Wales (NSW), satisfactorily in these tests (i.e., that by RTA of NSW, Australia, in its Australia RTA, as part of its joint meet certain performance criteria) when consumer ratings program and with the program with the NRMA Limited and dynamically tested would be able to 1974 NHTSA proposal. We envision the Royal Automotive Club of Victoria reduce the likelihood and/or severity of tethering the child restraint, and (RACV) to assess the relative these head strikes in many side impacts. orienting it at 90 degrees to the direction performance of child restraints available The tests are modeled after the test of sled travel. The 90-degree orientation in Australia, administers a program that that RTA of NSW, Australia, uses today would be consistent with the Euro incorporates a lateral dynamic sled test in the child restraint ratings program it NCAP protocol and Australian rating of tethered child restraints with a 20 administers, and are similar to a program. mph pulse. NSW RTA assesses the proposal issued by NHTSA when NHTSA conducted a series of 15 dummy’s lateral head excursion relative dynamic testing of child restraints was HYGE sled tests using the existing to a simulated vehicle door. In this test, first contemplated (42 FR 7959; March FMVSS No. 213 seat fixture oriented at the door structure is fixed, and there is 1, 1974). Under the 1974 NHTSA both 90° and 45° relative to the motion no attempt to simulate intrusion of the proposal, a 90-degree lateral impact of the sled buck. The matrix of tests is door structure. Child restraints are would have been conducted simulating shown below.
TABLE 1.—MATRIX OF SIDE-IMPACT TESTS
CRABI 12-month-old rear-facing HIII 3-year-old forward-facing Cosco Triad Century STE Cosco Triad Century STE 45° 90° 45° 90° 45° 90° 45° 90°
Tethered ...... XXXX Untethered ...... XXXXXXXX
Twelve of the tests (all of the above) No. 213 pulse. All of these tests were with respect to other injury criteria were were conducted using a 1⁄2 sine pulse. conducted at a test velocity of 32 km/ recorded and are summarized in the The remaining tests were selected h (20 mph) and a peak acceleration of following table: repeats from the above matrix, but were 17 g’s. In addition to the amount of BILLING CODE 4910–59–P conducted using the existing FMVSS dummy head excursion, performances
2 Regulation 44, Uniform Provisions Concerning with impact shields, which performed well in tethers. Vehicles are now required to have user- the Approval of Restraining Devices for Child frontal crashes and which were rarely misused, ready tether anchorages in rear seating positions, Occupants of Power-Driven Vehicles (‘‘Child could not pass the lateral test even when placed in along with standardized child restraint anchorage Restraint Systems’’). the center seating position. The agency decided not systems, as part of the requirements of Standard No. 3 to pursue lateral testing of child restraints given the NHTSA subsequently withdrew the proposal 225. We expect that with user-ready anchorages in after testing a number of restraints at a speed of 20 cost of the design changes that would have been vehicles, and with most new child restraints mph and at a horizontal angle of 60 degrees from necessary to meet the lateral test, the problems with the direction of the test platform travel. The misuse of tethers, and the possible price sensitivity incorporating tether straps in order to meet the research found that for outboard seating positions, of child restraint sales. (43 FR 21470, 21474; May more stringent head excursion requirement of only one of those restraints—one that required a 18, 1978.) Standard No. 213, tethers will generally be used, tether—could meet the lateral head excursion limits We have revisited this issue in light of several and thus there is a greater likelihood that that had been proposed in the NPRM. This was of developments in recent years. Forward-facing child countermeasures that depend on tether use will be concern because tethers were widely unused at that restraints are now subject to a 28-inch head effective. time. Further, the agency found that some restraints excursion limit that results in most of them having
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BILLING CODE 4910–59–C We are considering a test that would portion of the head of the dummy could limit head excursion such that no pass through a vertical plane that is
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parallel to the longitudinal plane of the used because it was readily available inch limit appeared to be a practicable test seat assembly, and measured and was thought by the agency to be and reasonable first step toward relative to the centerline of the child fairly representative of an average size improving child restraint performance restraint anchorage (LATCH) bar that is car in the current fleet. (As discussed in side impacts. While a lower furthest from the simulated impact later in this document, comments are excursion limit might have greater (Point Z1). The plane would be 508 requested on the representativeness of potential benefits in reducing the millimeters (mm) (20 inches) from Point the vehicle.) It was also based on results likelihood of head impacts against Z1 in the direction toward the side of from two 90-degree side impact sled vehicle components even further, not the simulated impact. tests recently conducted by the agency enough was known about the The 508 mm (20-inch) limit was based using a 3-year-old-dummy restrained in availability and efficacy of possible on the location of the LATCH anchorage forward-facing LATCH child restraint countermeasure to support a lower bars and the distance we measured from systems. The head excursion values for limit. It was unknown how the most inboard anchorage bar to the the dummy in these tests were 19 and side door structure of a Pontiac Grand 20 inches. (See test numbers TRC 595 manufacturers would be able to meet a Am passenger car. The Grand Am was and TRC 596 in Table 2, supra.) The 20- lower excursion limit.
b. Should HIC Be Limited in a 15 mph ‘‘School Bus Seating and Crash restraint.4 The structure would Dynamic Test With a Rigid Side Protection,’’ to assess the energy- essentially be a rigid, flat surface Structure (‘‘Wall Test’’)? absorption materials used to provide adjacent to the seat assembly, extending head protection in vehicle interiors. The second test under consideration from the seat cushion to a height of also involves a simulated lateral impact Comments are requested as to whether approximately 762 mm (30 inches). The on a sled, but the test would be the purposes of the tests in each of those height is intended to be high enough so conducted at 15 mph. NHTSA settled on standards are sufficiently similar to the that if the dummy’s head were to a 15 mph test because head excursion purposes in this case. contact the structure, the head would sufficient to cause contact with the In this test, we envision the use of a contact a flat surface, and not an edge vehicle interior was found to occur at rigid structure that would represent the this speed. We also chose a 15 mph test location of a vehicle’s side structure, 4 Under this approach, the LATCH anchorages because it is consistent with a headform would be moved from the center seating position positioned 508 mm (20 inches) from on the test seat assembly to an outboard seating impact test used in Standard No. 201, Point Z1, adjacent to the child position. The rigid structure would be attached next ‘‘Occupant Protection in Interior to the seat assembly to the same ‘‘floor’’ structure Impact,’’ and in Standard No. 222, to which the seat assembly is attached.
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or curve. The structure would extend surface. The structure would be preamble depicts the rigid structure, forward a distance of approximately 32 unyielding, and would not bend or flex aligned with the seat assembly. inches, again, to ensure that head when loaded. It would be covered with contact would only be with a flat an aluminum plate. Figure 2 of this
In this test, head excursion would not head and chest acceleration considering for this test.) The test pulse be measured because it appears that the measurements would be measured, to was derived from the crash pulses of the presence of the rigid structure would ensure that if the structure were struck, Grand Am when tested under Standard make it unnecessary to do so. A head the forces to the dummy’s head and No. 214 (49 CFR 571.214) (velocity of 15 excursion limit is needed when the test chest would not be excessive. Under mph with 21g peak acceleration), and in procedure does not include a surface this approach, other injury criteria the side impact program of the New Car representing the vehicle interior that limits would also have to be met, such Assessment Program (NCAP) (21 mph can be struck during the test. However, as those relating to neck injury and with a 26g peak acceleration). in this test procedure, there would be a chest deflection. Comments are requested on the The 15-mph test would be conducted rigid structure that could be struck by appropriateness and representativeness with the sled pulse used in the agency’s the dummy directly or indirectly while of using the pulses of this vehicle in side impact test program. (Figure 3 of retained in the child restraint. Limits on this preamble depicts the pulse we are these tests.
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The results of the side impact tests on dummy only, are presented below in the Grand Am buck, for the near-side Table 3. BILLING CODE 4910–59–P
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BILLING CODE 4910–59–C
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c. Are Both Tests Needed? structures, or ‘‘wings,’’ 5 that differ old dummy was positioned near-side to substantially from the requirements of the impact. Test results indicated that We have been considering the merits Standard No. 213. the performance of the European of having child restraints be subject to Notwithstanding the absence of restraint systems was not significantly both the 20 mph ‘‘no wall’’ and the 15 regulatory provisions addressing this different from that of the U.S. child mph ‘‘rigid wall’’ tests. We recognize aspect of performance, NHTSA restraints. That is, in each case, the that the tests may be duplicative to an evaluated U.S. and European child near-side test dummy’s head went out extent, since the rigid wall of the 15 restraints to compare their performance around the side of the child restraint mph test would be positioned at the 20- in a dynamic side impact simulation. and impacted the door frame of the sled inch excursion limit of the 20 mph test. The agency ran two series of sled tests buck. The side wings on the European Comments are requested concerning the using a Pontiac Grand Am passenger car restraint did not contain the head of the duplication, and, if it is believed that test buck, turned 90 degrees to the dummy any better than the U.S. there is duplication, the extent of the direction of impact. The agency used restraints we tested. (The results are duplication. Which requirement is sled pulses derived from the crash discussed in detail in a paper entitled, better, or are both needed? Should we pulses of the Grand Am when tested ‘‘Comparison of European and U.S. consider proposing to subject child under Standard No. 214 (velocity of 15 Child Restraints in Lateral Grand Am restraints to a second test requirement mph with 21g peak acceleration), and Sled Tests,’’ a copy of which is in the only if they fail the first test? For the side impact program of the New Car docket.) instance, if a rear-facing restraint were Assessment Program (NCAP) (21 mph This finding of no difference in unable to meet the 20-inch excursion with a 26g peak acceleration). In the performance between European and limit of the 20 mph test, we could first series of tests to evaluate the U.S. child restraints was relevant to subject it to hit the 15 mph rigid wall performance of current U.S. restraints, determining the level of performance of test and require that the injury criteria Hybrid III 3-year-old dummies were current child restraint designs, but does be met (presumably by additional positioned in the outboard rear seating not address the extent of the padding and/or reinforced side positions in child restraints that were manufacturers’ capabilities to improve structure). If it met those criteria, either a Cosco Triad or Touriva, or a designs to provide better protection for perhaps it should be considered to have Fisher-Price SafeEmbrace or a child’s head in a side impact. In a met the side impact protection SafeEmbrace II. In each test, one child study that evaluated rearward-facing requirements. As shown in this restraint with dummy was on the ‘‘near- child restraints in lateral impacts, example, an advantage to the 15 mph side,’’ i.e., same side, as the impact and researchers conducting side impact testing of prototype child restraints test over the 20 mph test is that the one child restraint with dummy was on found that ‘‘side protection can be former allows the development and the ‘‘far-side.’’ In each test, the near-side increased by fairly simple methods,’’ 6 assessment of a broader range of dummy’s head contacted the interior for example, by providing a reinforced countermeasures for child protection. door structure, resulting in high injury measures. The far-side dummy had side structure that distributes local That is, while the 20 mph requirement loads, energy absorbing materials and a focuses on better retaining the child’s minimal interaction with the vehicle interior, the near-side dummy or with modified head area that prevents the head and torso, the 15 mph requirement head from rotating out of the confines of could allow manufacturers to any other object. NHTSA then evaluated the side the child restraint. Researchers who incorporate energy-absorption designs impact protection capability of child modified a child restraint to incorporate into the child restraint, in addition to restraint systems that were certified to these features found that the restraint countermeasures that reduce occupant Regulation 44 (seats manufactured to was able to retain the head of a 3-year- excursion. Comments are requested on European regulations by Britax and by old test dummy in a lateral 50-kilometer such an approach. Century). NHTSA obtained six child per hour (km/h) dynamic test. Id. IV. Countermeasure Development restraints, three each of the Britax King Researchers from the RTA of NSW, and the Century Accel. Visual review of Australia, found head strikes could be We were not able to engage in any the European seats prior to testing did prevented in 90-degree tests depending, type of countermeasure development not reveal significant differences in the in part, on the depth of the side wings.7 within the time constraints set by the padding or size of the ‘‘wings’’ between This research indicates that TREAD Act for an NPRM. However, the Regulation 44 and the Standard No. countermeasure work could be several possible approaches were 213 seats. Because no instrumented side promising. However, because NHTSA identified. impact dummy was available for use, has not been able to satisfactorily the agency utilized instrumented Hybrid consider and evaluate possible a. Countermeasures That Better Retain III 3-year-old dummies, and focused its countermeasures for side impact and Cushion the Child’s Head evaluation of the restraints primarily on protection, we have decided against proceeding with an NPRM at this time. The legislative history of the TREAD the kinematic response of the dummies. During these tests, one Hybrid III 3-year- NHTSA will be undertaking a Act indicated an interest in research plan later in 2002 to evaluate incorporating into Standard No. 213 possible countermeasures that may what was thought to be superior 5 The only requirements for ‘‘wings’’ in the E.C.E. Regulation 44 apply to rear-facing child restraints. European side impact padding These restraints must have side wings with a depth 6 Kamre´n et al., ‘‘Side Protection and Child requirements. (‘‘Child Passenger Safety of minimum 90 mm measured from the median of Restraints—Accident Data and Laboratory Test Act of 2000,’’ S. 2070, February 10, the surface of the backrest. These side wings start Including New Test Methods,’’ 13th International 2000). NHTSA reviewed Regulation 44 at the horizontal plan passing through point ‘‘A’’ Technical Conference of Experimental Safety and continue to the top of the seat back. Starting Vehicles, November 4–7, 1991, Paris, France. and found that it neither prescribes any from a point 90 mm below the top of the seat back, 7 Kelly et al., ‘‘Child Restraint Performance in side impact tests for the evaluation of the depth of the side wing may be gradually Side Impacts With and Without Top Tethers and child restraints, nor requires special reduced. Child restraints meeting these With and Without Rigid Attachment (CANFIX),’’ designs or features for enhanced side requirements do not appear substantially different 1995 International IRCOBI Conference on the in design than convertible restraints manufactured Biomechanics of Impact, September 13–16, 1995, impact protection, such as deep side to Standard No. 213. Brunnen, Switzerland.
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enable rear-facing infant seats to better the door at the end of its sideway c. Countermeasures That Reduce the retain the child’s head in a side impact. movement. Local Stiffness of Vehicle Components The agency hopes to assess whether As a consequence, the dummy’s head Areas Where Children Are Most Likely potential countermeasures such as moved forward relative to the CRS [child To Hit Their Heads increased padding and/or depth of the restraint system] and contacted the front It may be that the best way of side wings on these restraints could portion of the side-wing. In turn, the side- developing countermeasures that would wing deflected and allowed the head to roll have a positive effect in limiting the be effective in protecting children in head excursion of a restrained dummy. around its front edge, as the CRS rebounded from the door. The HIC values child restraints on the near side of a side The results of this research will help impact would be to consider the child shape the agency’s future work on side shown***indicate only light head contact with the door. In contrast, the restraint and the vehicle as parts of a impact protection. CAUSFIX system did not allow single system. Standard No. 201 is b. Countermeasures That Keep the Child rotation**** The CAUSFIX concept intended to provide impact protection Restraint From Moving Laterally in a offered better head protection compared to in various crash modes, including side Side Impact the conventional seat belt/top tether systems. impact crashes, while Standard No. 214 (Id., page 5.) focuses on side impact crashes. Another countermeasure that might Comments are requested on these Standard No. 201, Occupant Protection provide side impact benefits is one that findings. In 1999, NHTSA required the in Interior Impact (49 CFR 571.201), keeps the child restraint from moving LATCH (or CAUSFIX) system to be requires passenger vehicles to provide laterally in the side impact, such as the installed on new passenger vehicles (64 protection when an occupant’s head use of rigid instead of flexible means for FR 10786; March 5, 1999). NHTSA strikes certain portions of target attaching a child restraint to the required child restraints to be equipped components, such as pillars, side rails, Standard No. 225 LATCH system. RTA with attachments that connect to the headers, and the roof. The components of NSW, Australia, conducted dynamic vehicle LATCH system beginning in are subjected to in-vehicle component side impact sled tests and found that a 2002, but allowed manufacturers to tests with a headform, and must limit child restraint with rigid means of being decide what type of connecters to use HIC to 1000. The standard could be attached to a LATCH system on their child restraints. The agency did expanded to apply to the areas of the outperformed a child restraint not require that rigid connectors be used vehicle interior that are identified as restrained by a flexible attachment because, among other reasons, we likely to be struck by a child’s head in system and a lap belt plus tether system. lacked data to confirm whether use of a side impact crash. However, our data Kelly et al., ‘‘Comparative Side Impact rigid attachments on a child restraint files do not clearly identify where head Testing of Child Restraint Anchorage would produce the side impact benefits strikes are occurring in vehicles. Since Systems,’’ Special Report 96/100, March reported by RTA. There was also a significant work would have to be done 1997.8 The side impact tests were concern that rigid connectors would to identify the appropriate target areas conducted in accordance with raise the price of child restraints and assess suitable countermeasures, Australian Standard (AS) 3691.1, except inordinately. (Rigid connectors are this approach was not considered for the addition of a simulated door estimated to add about $25 to the price responsive to the TREAD Act, given its structure, replicating a rear door of a of a child restraint.) Without evidence of time limitations. large sedan, adjacent to the test seat. a clear benefit in having rigid Another potential countermeasure to Testing was conducted at 32 km/hr and attachments, and in view of the reduce the local stiffness of vehicle side 14 g, with the test seat mounted at both potential price of child restraints with structures would be side impact air bags 90 degrees and 45 degrees to the rigid attachment systems and the (SIABs). The agency has done direction of sled travel. The lower leadtime necessary for their considerable research on SIABs.10 A anchorage points for the CAUSFIX development, NHTSA decided against crucial part of the agency’s current (LATCH) system were positioned 280 mandating that type of connector.9 In research concerns their effectiveness, mm (11 inches) apart on the test seat the event that the rigid attachment cost, and any possible harmful effects structure, with the inboard anchorage system with top tether is capable of for in-position and out-of-position approximately 610 mm (24 inches) from preventing the dummy’s head from occupants. Despite the agency’s research the inner surface of the door. An striking the side of the vehicle, how to date on SIABs, the agency did not instrumented 9-month-old dummy was should the agency balance that consider SIABs as a countermeasure used in all the tests. capability against the impact of possible because of the time limitations of RTA found that, for forward-facing cost increases on the use of child TREAD. However, comments on the seats, only the rigid-to-rigid CAUSFIX restraints in deciding whether to potential effectiveness of this approach (LATCH) attachment system was able to propose mandating a performance and suggestions on specific target prevent contact between either the requirement that can be met only by locations are requested. dummy’s head or the child restraint and rigid attachments at this time? VI. Specific Issues on Side Impact on the door structure in the 90-degree test. Another possible countermeasure that Which Comments Are Requested RTA stated that head contact with the the agency considered to prevent door was evident in the test involving movement of the child restraint toward There are a number of issues on the flexible attachment system, largely the vehicle side structure is tethering which comments would be helpful in due to the restraint’s rotating towards the bottom of a child restraint to the shaping NHTSA’s decision in this vehicle floor. Comments are requested rulemaking. 8 (RTA refers to the LATCH system as the on the effectiveness of this approach. CAUSFIX system, because ‘‘LATCH’’ was a term Consumer acceptability of this approach 10 Prasad et al., ‘‘Evaluation of Injury Risk from developed subsequent to the RTA study, primarily is not known at this time. Side Impact Air Bags,’’ 17th International Technical by U.S. manufactures and retailers for a U.S. Conference on the Enhanced Safety of Vehicles, audience. Further, at the time of the RTA study, the June 4–7, 2001, Amsterdam, Netherlands. This rigid lower bars and top tether anchorage design of 9 At present, we are not aware of any child paper describes NHTSA’s program for evaluation of LATCH was then under development by Canada restraint system that has rigid attachments that is side air bag systems for out-of-position occupants and Australia.) available in the U.S. and provides a status report on the current research.
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a. Crash Characteristics However, it will be years before the acceleration and velocity change of the The agency has been hampered by a LATCH-equipped vehicles replace the chassis. Furthermore, if a compartment lack of specific accident data on vehicles on the road today. Given these strike occurs, the struck side of that children in side impact crashes. There considerations, comments are requested vehicle may intrude rapidly into the are few available data on how children on whether child restraints should also passenger compartment, impacting are being injured and killed in side be required to meet the side impact occupants seated on the struck side impacts (e.g., to what degree injuries are performance requirements when adjacent to the impact. With respect to caused by intrusion of an impacting attached to the standard seat assembly a child restraint, the chassis acceleration vehicle or other object). Using 1999 by a lap and shoulder belt (and top affects the reaction of the anchorages FARS data, 55 percent of the 91 tether). What practicability problems, if and the inertial displacement of the children between the ages of 0 and 12 any, would be associated with achieving child restraint system, while the side that were killed in side impact crashes compliance while using the latter type intrusion affects the direct loading on while restrained in child restraints were of attachment? the child restraint system. seated on the side nearest to the crash, Comments are requested from This complex interaction cannot be with the remaining fatal injuries evenly manufacturers and researchers as to replicated entirely in a simple sled test distributed in middle and far-side how they have sought to better protect procedure. For the draft ISO test seating positions. Is there any evidence children in side impacts. To what extent procedure, the chassis acceleration and that injuries and fatalities occur more have manufacturers considered side door intrusion have been specified often in compartment impacts than in impact protection in designing child independently. The chassis acceleration non-compartment impacts? Is there restraints and vehicles? What measures is reproduced by the sled deceleration. additional information available to have been used thus far in child The door intrusion is simulated by the distinguish the contact location (vehicle restraint and vehicle designs to improve motion of a hinged door mounted on the or child restraint system) causing the side impact performance to children? sled. An alternative method using a most severe injury(ies)? non-hinged door has also been 2. ISO evaluated. For the evaluation of the b. Child Injury Mechanisms The International Organization for performance of a child restraint system Given the agency’s limited Standardization (ISO) has embarked on on the non-struck side, only the chassis information regarding the side impact what has become a comprehensive, (sled) acceleration is relevant. crash characteristics, it is similarly long-term endeavor to develop a The ISO Working Group has difficult to identify the specific injury dynamic side impact test procedure.11 recognized that, although a test method mechanisms in children in these NHTSA has been monitoring that and installation procedure has been crashes. NHTSA researchers have undertaking. Currently, the Working developed, there are no dummies opined that in the absence of autopsies, Group has developed a draft side impact available at the present time whose neck injuries may sometimes occur but test method that addresses ‘‘near side’’ construction is designed for side impact be recorded as head injuries. What impact conditions. A copy of the draft validation. Accordingly, the Working evidence is there that neck injuries may test method has been placed in the Group will conduct method validation occur to CRS occupants in side impact docket. The Working Group will address tests using dummies recognized as being crashes? What head injury mechanisms non-struck side test requirements at a of limited capability until new dummies occur? Are they focal point injuries due later date. The draft standard has been are available. Such validation will be to direct contact, or do they tend to be developed through consideration of a conducted in Europe using modified P diffuse injuries resulting from inertial progression of tests from full-scale series dummies. loadings? Are there other serious and vehicle impacts to a sled with a hinged The ISO working group’s draft side fatal injury mechanisms occurring to door. In the latter procedure, the impact test method has been circulated children in side impact collisions when intruding door is represented by a within the group for review and they are restrained in a CRS? pivoted door structure that is rotated in comment. However, given the lack of an relation to the test seat, at a relative approved test device, and corresponding c. Test Procedures velocity within a band of velocities injury criteria, a final version of an ISO 1. Are the Approaches Reasonable? measured in full-scale tests. The test procedure is not expected in the movement represents the deformation of near future. The level and amount of We request comments on all aspects the door inner panel relative to the rear effort needed to further develop and of the test procedures, including general seat structure. validate the ISO side impact test methodology; sled test orientation; test During a side impact collision, the procedure far exceeds what can be speed and pulse; and positioning of the compartment undergoes a lateral accomplished within the time rigid structure (Wall Test). Should constraints of the TREAD Act. It is not LATCH be the sole means of attaching 11 The International Organization for known when ISO will adopt the draft a child restraint for the purposes of Standardization working group ISO TC22/SC12/ standard for a dynamic side impact test testing? (Currently, the LATCH WG1, ‘‘Child Restraint Systems,’’ has declared that procedure. anchorages are in the center seating the risk of side impacts to children in cars is an important working item, and established an ad-hoc Comments are requested on whether position on the standard seat assembly group in 1993 to analyze this area. The ad-hoc the ISO procedure would be appropriate described in Standard No. 213. We group noted that, ‘‘From different accident research for Standard No. 213. Should NHTSA would consider moving the LATCH units, it was reported that critical or fatal injuries wait for ISO to finalize it before anchorages to an outboard seating of child restraint-protected children in side collisions show about the same importance as in proceeding with a proposal for side position.) All passenger vehicles frontal collisions.’’ Therefore, the ISO working impact protection? manufactured on or after September 1, group noted that there is an interest in evaluating 2002 will be equipped with LATCH the risk of injuries to children in side impacts and d. Performance Requirements systems, and all child restraints in analyzing the side impact performance of child We are contemplating side impact restraint systems. The ISO working group was given manufactured on or after September 1, the task of developing an international standard of requirements that would generally 2002 will have components that attach uniform test criteria for such evaluation. This work consist of the same limits on injury to the LATCH anchors in vehicles. remains ongoing at this time. criteria as those proposed in the NPRM
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published today for inclusion in Comments are requested on the relative to the Hybrid III and Q-series Standard No. 213 for the frontal impact practicability of a head excursion dummies? test. We would limit the forces that are requirement less than 20 inches. Is there f. Design Restriction imposed on a dummy’s head in the side a practicable way of meeting a more impact tests by specifying the head stringent head excursion requirement in Comments are also requested on the injury criteria (HIC) proposed in the vehicles smaller than the Grand Am? appropriateness of proposing to amend pending NPRM on this subject Should a head excursion limit also be Standard No. 213 to specify a particular (HIC15570, when testing with the 3-year- based on the potential for side structure design for child restraints, instead of a old dummy, and HIC15390, when testing intrusion in a side impact? Intruding dynamic test requirement. For example, with the CRABI 12-month-old). The side structure would reduce the amount should S5.2.2.1(b) mandate side wings purpose of the HIC limits in the No Wall of available space in a side impact. on child restraints and increase the and Wall Tests would be to ensure that Comments are requested on how height of the wings above the current (a) the dummy’s head would be retained intrusion should be accounted for in requirement? We recognize that that within the child restraint and (b) the setting an excursion limit and the approach would be more design child restraint structure surrounding the practicability of meeting such a limit. restrictive and would not allow head would not transfer harmful loads manufacturers the leeway to develop e. Test Dummies from restraint-to-door impacts to the alternative designs that might better child, or would not contain stiff We are considering the use of the enhance safety and public acceptability. components. CRABI and Hybrid III 3-year-old Would it be unnecessarily design We are considering the merits of using dummies to test child restraints. We are restrictive? Further, at this point, we do the same neck injury criteria in the side mindful that there is some question not know how high the wings would impact tests that are being proposed for whether these dummies are appropriate need to be to retain the head in a frontal compliance tests of child for use in side impact testing. The dynamic environment. How high would restraints. Results from the limited Hybrid III 3-year-old has a shoulder and they need to be? testing that we have conducted show torso that are stiffer than the human’s in Comments are also requested on that, although difficult, existing child the lateral direction, and probably whether, in lieu of a dynamic test restraint designs may meet the specified would not fully replicate a child’s requirement, we should propose neck injury parameters. Comments are kinematics in a side impact. The agency specifying the type and amount of requested on whether reducing head and the biomechanical community are improved energy-absorbing material that excursions could result in increased developing more advanced side impact should be used around the head area of neck loading. Comments are also sought dummies, such as the Q series 3-year- the restrained child. What type of on the ability of deep wings to reduce old (Q3) test dummy, which is the material should be specified? Would injury. Would the enlarged side product of a European dummy that approach be unnecessarily design structure sufficiently retain the head manufacturer. However, the Q3 dummy restrictive? Would the addition of within the shell of the child restraint has yet to show whether it will prove to padding increase neck injuries by system? If not, under what impact be suitable for lateral child restraint allowing pocketing of the head and conditions might the head not be testing. thereby generating increased neck retained? In those cases in which the We have also conducted preliminary loads? evaluations of prototype neck designs head would not be retained, would g. Consumer Acceptance there be any potential for increased neck with side impact capabilities for the injury due to side wings? Hybrid III 3-year-old dummy. During Comments are requested on the We are considering a head excursion the limited series of side impact tests reduced ease of use of restraints that limit of 508 mm (20 inches) from the conducted by the agency at the Vehicle would have deep side wings. Deep side centerline of the child restraint Research and Test Center (VRTC), the wings may make it somewhat more anchorage (LATCH) bar that is furthest dummy appeared to rotate toward the difficult to place a child in the restraint, from the simulated impact (Point Z1). point of impact in each case to yield a especially an infant. Would the larger The 508 mm (20-inch) limit was based, generally frontal kinematic response. side structure make it significantly in part, on the location of the LATCH The shoulder structure for adults—and harder for parents to move children anchorage bars and the distance we its relevance to kinematic response—is (especially infants) in and out of the measured from the most inboard not currently fully understood by the restraint, or make it significantly more anchorage bar to the side door structure biomechanical community, let alone the difficult to install the restraint in the of a Pontiac Grand Am passenger car. shoulder structure for a child. Yet, given vehicle? Would the larger side structure Comments are requested on the the initial forward rotation of the Hybrid substantially reduce the ability of reasonableness of basing the limit on the III 3-year-old dummy in a lateral test, it restrained children to see out of the Grand Am interior. How representative is possible that the shoulder would have restraint? Would increased is the Grand Am of passenger vehicles? little influence on the overall kinematic inconvenience or lack of visibility lead Would the distance in smaller vehicles response of the Hybrid III 3-year-old to any significantly reduced use of the be significantly less? Would the 20-inch dummy in the side impact tests under restraint? Are there advanced materials limit be sufficient to provide safety in consideration. Comments are requested that could overcome these problems? vehicles with a smaller interior than the on whether the existing Hybrid III 3- Comments are also requested on Grand Am (smaller distance between year-old is the best available dummy consumers’ sensitivity to changes in the LATCH anchorage bar to the side door and sufficient for use in side impact price of restraints. Is consumer demand structure)? The 20-inch limit was also testing. Has any dynamic side impact sufficiently sensitive to new child based on the results from two 90-degree testing been performed with the CRABI, restraint prices such that an increase in side impact sled tests using a 3-year-old- Hybrid III, Q- or P-series dummies? the price of a child restraint could lead dummy restrained in forward-facing What problems, if any, have been to a decrease in demand for child LATCH child restraint systems. The experienced in testing with the P-series restraints, notwithstanding that each of head excursion values for the dummy in European dummy? What is the the States and the District of Columbia these tests were 19 and 20 inches. suitability of the P-series dummy require the use of child restraints in
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motor vehicles? If so, could the resulting occupants? How could side impact evaluate the increased padding and changes in child restraint usage partially protection best be improved for children enlarged wings approaches in 2002, for or totally offset the benefits of a side in booster seats? rear-facing restraints. Information from impact protection rule? Would higher that study will help us further evaluate i. Potential Cost prices lead consumers generally to the course of action we should pursue decide to use older model child At this time, the agency has in this rulemaking. restraints instead of purchasing new insufficient information about the NHTSA requests comments on the models? Would a cost increase result in particular methods of compliance effect of additional costs on the number fewer restraints being purchased for (‘‘countermeasures’’) and their costs. of restraint producers and on giveaway and loaner programs? The agency is uncertain what competition. The child restraint countermeasures manufacturers might h. Potentially Affected Child Restraints industry is a very fluid industry; use to meet the possible side impact manufacturers are continuously entering As to the possible application of the requirements under consideration. and leaving it for a variety of reasons. The estimated costs to comply with side impact protection requirements, we Would an increase in child restraint are considering only restraints the contemplated side impact prices affect the viability of any of these recommended for children up to 40 lb. requirements vary, depending on the manufacturers if the profit margins were Comments are requested as to whether countermeasure used. For some infant reduced? If so, would the number of tethered convertible restraints with restraints, the addition of one-inch thick manufacturers decrease, and as a result, impact shields could meet side impact padding could be sufficient to meet the cause the competition in this market to performance requirements. requirements (the estimated additional Comments are also requested on cost per restraint is $2.50.) The total cost decrease? Do retailers tend to dictate the applying side impact requirements to of this countermeasure for those wholesale end of this market by booster seats. Booster seats, as currently restraints is estimated to be $1.750 requiring that they be provided child designed, are unlikely to be able to meet million. For some forward-facing restraints in specified price ranges? If the requirements under consideration toddler restraints, the sides (wings) on so, would an increase in the cost of because, to fit older children, they the top portion of the restraint might be child restraints to the manufacturers typically have little or no side structure. increased to prevent a child’s head from result in reduced profit margins? (Side structure modification is one of passing the sides and contacting the j. Potential Benefits the ways we anticipate manufacturers vehicle side structure. We estimate that would be able to meet a side impact test the larger sides and padding would add In 1999, 420 of the 1,317 children requirement.) Booster seats also are not about $15.00 to the cost of a convertible (about 32 percent) between the ages of subject to the requirement in Standard child restraint (one that is used rear- 0 to 12 killed in motor vehicle crashes No. 213 that makes it necessary for child facing with an infant and forward-facing were killed in side impacts. Of these restraints to have a tether, since they do with a toddler). A convertible child children, 91 were killed while not pose the same problems of restraint now typically costs about restrained in child restraints. Children compatibility with the vehicle as do the $70.00. We estimate the total cost of the seated on the side nearest to the crash restraints for younger children, which enlarged wings countermeasure to be accounted for 55 percent of the have to be installed by the vehicle belt $49.5 million. fatalities. Children seated in a middle system. Yet, older children could Tethering the bottom of a forward- seating position, or on the far-side, benefit from improved side impact facing restraint to an anchor on the floor accounted for 23 and 22 percent, protection. A tether could be added of the vehicle to impede the ability of respectively. We believe that limiting relatively easily, but side structure the child restraint to rotate toward the head excursion of the dummy in might cause the restraints to be too large side impact is estimated to cost $4.14 dynamic testing would result in fewer and bulky for use. Further, S5.4.3.2 of per child restraint, and $1.40 per head impacts against the vehicle side FMVSS No. 213 effectively limits the vehicle (for two anchors). The total cost structure in a side impact, and, mass of current booster seats to 4.4 kg. of the tether countermeasure is correspondingly, fewer injuries and Addition of a side structure would estimated to be $38.3 million. fatalities. Further, limiting head and likely cause most existing booster Another possible countermeasure chest acceleration would require better designs to exceed this limit. There are could be to use rigid components on energy attenuation by the child restraint a number of combination toddler/belt- child restraints for attaching them to the in a side impact, which could reduce positioning booster seats on the market. lower anchorage bars of a vehicle’s child fatalities and injuries resulting from When used with younger children, these restraint anchorage system. We estimate impacts of the child’s head against the restraints have a full harness system for that this countermeasure would add child restraint side structure. However, the child and attach to the vehicle seat $25.15 per child restraint, for a total cost it is difficult to quantify that reduction. by way of the vehicle’s belt system or of $100.6 million. We do not know whether the possible LATCH system. When the child grows The agency requests comments on countermeasures we have identified are to a certain size (typically over 40 lb), these and other possible feasible or effective. Further, we do not parents are instructed to remove the countermeasures. Given that some child know enough about how children are harness and to use the child restraint restraints could meet the side excursion dying and getting injured in side system as a belt-positioning booster. and injury limits in one test mode, and impacts. Forty-five percent of the total Because these restraints are used as that child restraint manufacturers have fatalities for children who are in child booster seats when the child is over 40 never had to design for a side impact restraints in side impact crashes occur lb, and since side structure on this type test, it is possible that relatively minor when the child is seated in either the of restraint could impede its use as a changes in design, without significant middle or far side (non-impacted side) booster seat, should these seats be changes in the child restraints, could seating positions. Would limiting the excluded from a proposed side impact allow some manufacturers to pass the lateral excursion for these occupants requirement? Should booster seat tests. We have not evaluated the result in improved protection? occupants rely on the vehicle structure countermeasures to determine their Comments are requested on these for side impact protection, as do adult feasibility and benefit, although we will issues.
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VII. Rear Impact Protection is warranted. Is there any test data that seating position, or on the far-side, Data from FARS for 1991–2000 show would support the establishment of a accounted for 23 and 22 percent, that 9580 passenger vehicle occupants test that would parallel the existing respectively. Limiting head excursion of between the ages of 0 and 8 years old European requirement? Would existing the dummy in dynamic testing could were fatally injured. Of these, 662 (6.9 restraints be able to meet the result in fewer head impacts against the percent) were killed in rear impact requirements with no modifications? If vehicle side structure in a side impact, crashes, while 3536 (36.9 percent) were so, does it make sense to require the test and, correspondingly, fewer injuries and killed in frontal crashes and 2759 (28.8 as part of FMVSS No. 213? Are there fatalities. Limiting head and chest percent) were killed in side impact particular requirements of ECE acceleration could lead to better energy crashes. Of the 662 children killed in Regulation R44 for rear-facing child attenuation by the child restraint in a restraints in rear impacts that should be side impact, which might reduce rear impact crashes between 1991–2000, given greater consideration? fatalities and injuries resulting from 214 were restrained in a child restraint; impacts of the child’s head against the 128 were restrained with a lap or lap/ VIII. Rulemaking Analyses child restraint side structure. Given shoulder belt; 266 were unrestrained Executive Order 12866 (Regulatory certain assumptions, the side impact and 54 were of other or unknown Planning and Review) and DOT tests under consideration could prevent restraint use. Further, of the 104 Regulatory Policies and Procedures 14 fatalities and 55 injuries annually. children under the age of 1 that were The tests under consideration may killed during this time period, 60 were The agency has considered the impact of this ANPRM under Executive Order only partially address the harm in child restraints, 2 were in lap or lap/ resulting from near-side (impacted side) shoulder belts, 38 were unrestrained, (E.O.) 12866 and the Department of Transportation’s regulatory policies and crashes. However, comments are and 4 were of other or unknown requested on whether benefits may restraint use. procedures and determined that it is ‘‘significant’’ because one means of result in some side impacts with lower The breakdown of restraint use for degrees of intrusion (e.g., lower speed children under the age of 1 is provided meeting a dynamic side impact requirement could result in costs over crashes), because limits on head to identify the possible benefits excursion and injury reference values associated with establishing a rear $100 million and could therefore be economically significant under E.O. may prevent children’s heads from impact test for rear-facing restraints in striking the vehicle side structure in FMVSS No. 213 which would be similar 12866, i.e., have an annual effect on the economy of $100 million or more. 12 such crashes, when head contact might to that which is conducted under the have otherwise occurred in the absence European Regulation R44. In the This document was reviewed by OMB under E.O. 12866. At this point, NHTSA of an excursion limit, or might attenuate European test, rear-facing restraints are crash forces on the child in lower speed subjected to a rear impact test wants more information about the costs and benefits of this rulemaking before it crashes. Comments are also requested conducted at 30 km/hr (18.6 mph), with on whether limiting lateral head peak deceleration between 14 g and 21 will decide to issue a proposal that would be economically significant excursion and/or HIC may benefit g over a 70 msec time period. Limits on children who are in child restraints under E.O. 12866. A Preliminary the amount of allowable head excursion seated in either the middle or far side Economic Assessment (PEA) discussing during the dynamic test are specified. (non-impacted side) seating positions. During recent dynamic sled testing in the costs and benefits of the ANPRM is 13 The estimated costs to meet the side support of FMVSS No. 202 and FMVSS available from the docket. impact tests under consideration vary, As discussed in the PEA, the agency No. 207 research, a rear-facing child depending on the countermeasures is uncertain at this time what restraint with the CRABI 12-month-old used. For some infant restraints, the countermeasures manufacturers would dummy was added to three different addition of one-inch thick padding use to meet side impact requirements. tests. The tests were conducted using a could be sufficient (the estimated cost We believe that the side impact tests 1999 Dodge Intrepid vehicle buck. An per restraint is $2.50.) The total cost of under consideration could improve the Evenflo On My Way child restraint, this countermeasure is estimated to be with the attached base, was positioned protection afforded to children involved $1.750 million. For some forward-facing in the rear seat of the vehicle for each in side impact. In 1999, about 32 toddler restraints, the sides (wings) on test. One test, simulating a dynamic percent of the 1,317 children between the top portion of the restraint might be FMVSS No. 202 condition, was the ages of 0 to 12 killed in motor increased to prevent a child’s head from conducted at approximately 17.5 km/h vehicle crashes were in side impacts. Of passing the sides and contacting the (11 mph). The other two tests were these children, 91 were killed while vehicle side structure. Larger sides and conducted at approximately 30.5 km/h restrained in child restraints. Children padding are estimated to add about (19 mph). Regardless of simulated seated on the side nearest to the crash $15.00 to the cost of a convertible child impact speed, the CRABI 12-month-old accounted for 55 percent of the restraint (one that is used rear-facing in the rear-facing child restraint was fatalities. Children seated in a middle with an infant and forward-facing with able to easily meet the injury criteria a toddler). A convertible child restraint that are proposed under FMVSS No. 12 This could be the case if the countermeasure involved using rigid components on child restraints now typically costs about $70.00. The 208; however, compliance with the ECE that attach to the vehicle’s rigid LATCH child total cost of the enlarged wings Regulation R44 requirements were not restraint anchorage system. countermeasure is estimated to be $49.5 verified. 13 NHTSA’s Preliminary Economic Assessment million. A third possible Given the results of the above testing, (PEA) discusses issues relating to the potential countermeasure involves impeding the costs, benefits and other impacts of this regulatory in conjunction with the data showing action. The PEA is available in the docket for this ability of the child restraint to rotate that fatalities for children as a result of rule and may be obtained by contacting Docket toward the side impact. Tethering the rear impact crashes constitute a much Management at the address or telephone number bottom of a forward-facing restraint to smaller percentage of the total than provided at the beginning of this document. You an anchor on the floor of the vehicle may also read the document via the Internet, by other crash modes, the agency is not following the instructions in the section below might achieve this result. The cost of certain whether the establishment of a entitled, ‘‘Viewing Docket Submissions.’’ The PEA such a countermeasure is estimated to rear impact test for rear-facing restraints will be listed in the docket summary. be $4.14 per child restraint, and $1.40
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per vehicle (for two anchors). The total How Do I Prepare and Submit close of business on the comment cost of the tether countermeasure is Comments? closing date indicated above under estimated to be $38.3 million. Another Your comments must be written and DATES. To the extent possible, we will possible countermeasure could be to use in English. To ensure that your also consider comments that Docket rigid attachment components on child comments are correctly filed in the Management receives after that date. If restraints that attach to the lower Docket, please include the docket Docket Management receives a comment anchorage bars of a vehicle’s child number of this document in your too late for us to consider it in restraint anchorage system. This comments. developing an NPRM (assuming that countermeasure is estimated to add Your comments must not be more one is issued), we will consider that $25.15 per child restraint, for a total cost than 15 pages long (49 CFR 553.21). We comment as an informal suggestion for of $100.6 million. NHTSA wants more established this limit to encourage you future rulemaking action. information about the costs and benefits to write your primary comments in a How Can I Read the Comments of this ANPRM before it will decide to concise fashion. However, you may Submitted by Other People? issue a proposal that would be attach necessary additional documents economically significant under E.O. to your comments. There is no limit on You may read the comments received 12866. the length of the attachments. by Docket Management at the address The agency requests comments on Please submit two copies of your given above under ADDRESSES. The these and other possible comments, including the attachments, hours of the Docket are indicated above countermeasures. The countermeasures to Docket Management at the address in the same location. have not been evaluated to determine given above under ADDRESSES. You may also see the comments on their feasibility and benefit, although Comments may also be submitted to the Internet. To read the comments on NHTSA will evaluate potential the docket electronically by logging onto the Internet, take the following steps: countermeasures in 2002, for rear-facing the Dockets Management System Web restraints. Information from that study site at http://dms.dot.gov. Click on (1) Go to the Docket Management will help us further evaluate the course ‘‘Help & Information’’ or ‘‘Help/Info’’ to System (DMS) Web page of the of action the agency should pursue in obtain instructions for filing the Department of Transportation (http:// this rulemaking. document electronically. dms.dot.gov/). IX. Submission of Comments How Can I Be Sure That My Comments (2) On that page, click on ‘‘search.’’ Were Received? (3) On the next page (http:// How Can I Influence NHTSA’s Thinking dms.dot.gov/search/), type in the four- on This Rulemaking? If you wish Docket Management to notify you upon its receipt of your digit docket number shown at the In developing this ANPRM, we tried comments, enclose a self-addressed, beginning of this document. Example: If to address the concerns of all our stamped postcard in the envelope the docket number were ‘‘NHTSA– stakeholders. Your comments will help containing your comments. Upon 2001–1234,’’ you would type ‘‘1234.’’ us improve this rulemaking. We invite receiving your comments, Docket After typing the docket number, click on you to provide different views on Management will return the postcard by ‘‘search.’’ options we discuss, new approaches we mail. (4) On the next page, which contains have not considered, new data, docket summary information for the descriptions of how this ANPRM may How Do I Submit Confidential Business Information? docket you selected, click on the desired affect you, or other relevant information. comments. You may download the If you wish to submit any information We welcome your views on all aspects comments. However, since the under a claim of confidentiality, you of this ANPRM, but request comments comments are imaged documents, should submit three copies of your on specific issues throughout this instead of word processing documents, complete submission, including the document. Your comments will be most the downloaded comments are not word information you claim to be confidential effective if you follow the suggestions searchable. below: business information, to the Chief Counsel, NHTSA, at the address given Please note that even after the —Explain your views and reasoning as comment closing date, we will continue clearly as possible. above under FOR FURTHER INFORMATION CONTACT. In addition, you should to file relevant information in the —Provide solid technical and cost data submit two copies, from which you Docket as it becomes available. Further, to support your views. have deleted the claimed confidential some people may submit late comments. —If you estimate potential costs, business information, to Docket Accordingly, we recommend that you explain how you arrived at the Management at the address given above periodically check the Docket for new estimate. under ADDRESSES. When you send a material. Upon receiving the comments, —Tell us which parts of the ANPRM comment containing information the docket supervisor will return the you support, as well as those with claimed to be confidential business postcard by mail. which you disagree. information, you should include a cover —Provide specific examples to illustrate Authority: 49 U.S.C. 322, 30111, 30115, letter setting forth the information 30117, 30166 and Pub. L. 106–414, 114 Stat. your concerns. specified in our confidential business 1800; delegation of authority at 49 CFR 1.50. —Offer specific alternatives. information regulation. (49 CFR part Issued on April 24, 2002. —Refer your comments to specific 512.) sections of the ANPRM, such as the Stephen R. Kratzke, units or page numbers of the Will the Agency Consider Late Associate Administrator for Safety preamble, or the regulatory sections. Comments? Performance Standards. —Be sure to include the name, date, and We will consider all comments that [FR Doc. 02–10506 Filed 4–25–02; 10:00 am] docket number with your comments. Docket Management receives before the BILLING CODE 4910–59–P
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Part III
Department of Agriculture Agricultural Marketing Service
7 CFR Part 929 Cranberries Grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York; Hearing on Proposed Amendment of Marketing Agreement and Order No. 929; Proposed Rule
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DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: proposed amendments to the cranberry Kathleen M. Finn, Marketing Order marketing order. The Committee’s Agricultural Marketing Service Administration Branch, Fruit and request for hearing was submitted to Vegetable Programs, AMS, USDA, 1400 USDA on November 5, 2001. A request 7 CFR Part 929 Independence Avenue SW., Stop 0237, to consider amendments to the [Docket No. AO–341–A6; FV02–929–1] Washington, DC 20250–0237; telephone: cranberry marketing order was also (202) 720–2491, Fax: (202) 720–8938. received on November 5, 2001, from an Cranberries Grown in the States of Small businesses may request attorney representing two cranberry Massachusetts, Rhode Island, information on this proceeding by handlers, Clement Pappas & Company, Connecticut, New Jersey, Wisconsin, contacting Jay Guerber, Marketing Order Inc. and Cliffstar Corporation. Michigan, Minnesota, Oregon, Administration Branch, Fruit and In addition, USDA issued a press Washington, and Long Island in the Vegetable Programs, AMS, USDA, 1400 release on January 15, 2002, that invited State of New York; Hearing on Independence Avenue SW., Stop 0237, cranberry growers, handlers and other Proposed Amendment of Marketing Washington, DC 20250–0237; telephone: interested persons to propose Agreement and Order No. 929 (202) 720–2491, Fax: (202) 720–8938. amendments to the marketing order. SUPPLEMENTARY INFORMATION: This Two persons submitted additional AGENCY: Agricultural Marketing Service, administrative action is instituted proposals, the Wisconsin Cranberry USDA. pursuant to the Agricultural Marketing Cooperative and Doanne Andresen. ACTION: Notice of hearing on proposed Agreement Act of 1937, as amended (7 The hearing is called pursuant to the rulemaking. U.S.C. 601–674), hereinafter referred to provisions of the Act and the applicable as the ‘‘Act.’’ This action is governed by SUMMARY: Notice is hereby given of a rules of practice and procedure the provisions of sections 556 and 557 public hearing to consider amending governing the formulation of marketing of title 5 of the United States Code and, agreements and orders (7 CFR part 900). Marketing Agreement and Order No. therefore, is excluded from the 929, hereinafter referred to as the requirements of Executive Order 12866. Proposals Submitted by the Cranberry ‘‘order.’’ The order regulates the The Regulatory Flexibility Act (5 Marketing Committee handling of cranberries grown in U.S.C. 601 et seq.) seeks to ensure that Massachusetts, Rhode Island, The Committee proposes to revise within the statutory authority of a seven areas of program operations. In Connecticut, New Jersey, Wisconsin, program, the regulatory and Michigan, Minnesota, Oregon, addition, the Committee recommended informational requirements are tailored that the amendment proceeding be Washington, and Long Island in the to the size and nature of small State of New York. The purpose of the expedited whereby the recommended businesses. Interested persons are decision would be omitted in order to hearing is to receive evidence on a invited to present evidence at the number of amendments proposed by the have any approved amendments in hearing on the possible regulatory and place as soon as possible. This can only Cranberry Marketing Committee informational impacts of the proposals (Committee), which is responsible for be done if the Secretary finds, on the on small businesses. basis of the record, that due and timely local administration of the order, and The amendments proposed herein execution of his or her functions other interested parties. These proposals have been reviewed under Executive imperatively and unavoidably requires are intended to improve the Order 12988, Civil Justice Reform. They such omission. Participants at the administration, operation, and are not intended to have retroactive hearing are therefore invited to present functioning of the order. effect. If adopted, the proposed testimony on this recommendation. The DATES: The hearing dates are: amendments would not preempt any 1. May 20, 2002, 9 a.m. to 5 p.m., and State or local laws, regulations, or amendments proposed by the continuing on May 21, 2002, at 9 a.m., policies, unless they present an Committee are summarized below. if necessary, Plymouth, Massachusetts. irreconcilable conflict with the Administrative Body 2. May 23, 2002, 9 a.m. to 5 p.m., proposals. Bangor, Maine. The Act provides that administrative 1. Increase Committee membership to 3. June 3, 2002, 9 a.m. to 5 p.m., and proceedings must be exhausted before 13 industry members, 1 public member, continuing on June 4, 2002, at 9 a.m., if parties may file suit in court. Under 9 industry alternate members and 1 necessary, Wisconsin Rapids, section 608c(15)(A) of the Act, any public alternate member. The current Wisconsin. handler subject to an order may file Committee is composed of 7 industry 4. June 6, 2002, 9 a.m. to 5 p.m. and with the Secretary a petition stating that members, each with an alternate and 1 continuing on June 7, 2002 at 9 a.m., if the order, any provision of the order, or public member and alternate. This necessary, Portland, Oregon. any obligation imposed in connection proposal would also incorporate a ADDRESSES: The hearing locations are: with the order is not in accordance with ‘‘swing’’ position whereby the entity 1. Plymouth—Sheraton Inn, 180 law and request a modification of the (either independent or cooperative) Water Street, Plymouth, Massachusetts order or to be exempted therefrom. A which sells more than 50 percent of the 02360. handler is afforded the opportunity for total volume sold is assigned an 2. Bangor—Bangor Motor Inn, a hearing on the petition. The Act additional seat. Banquet and Conference Center, Hogan provides that the district court of the Related proposed changes would Road, Bangor, Maine 04401. United States in any district in which modify §§ 929.22 and 929.23 to 3. Wisconsin Rapids—Hotel Mead the handler is an inhabitant, or has his incorporate nomination and selection and Conference Center, 451 East Grand or her principal place of business, has procedures to reflect the change in Avenue, Wisconsin Rapids, Wisconsin jurisdiction to review the Secretary’s Committee membership. The change to 54494. ruling on the petition, provided an § 929.22 would also allow the 4. Portland—Edith Green-Wendell action is filed not later than 20 days Committee to request tax identification Wyatt Federal Building, 1220 SW 3rd after the date of the entry of the ruling. numbers for voting purposes and Avenue, Room 322, Portland, Oregon At a Committee meeting in August authorize mail nominations for 97204. 2001, the Committee recommended independent members.
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Another related change is proposed in Paid Advertising Proposals Submitted by Wisconsin Cranberry Cooperative quorum and voting requirements to 14. Add authority for paid advertising reflect the increased number of under the research and development The Wisconsin Cranberry Committee members. In addition, a provision of the order. Cooperative, a cranberry cooperative related change is proposed to reset the marketing association, proposed Definition of Cranberry clock for tenure limitations to revisions in two areas of program correspond to the change in Committee 15. Add the species Vaccinium operations. These proposed members. oxycoccus to the definition of cranberry. amendments are summarized below. 2. Clarify how alternates may fill Currently, only the species Vaccinium Administrative Body positions in any member’s absence. macrocarpon is included in the 3. Authorize the Committee to definition of cranberry. 23. Recognize that there are more than reestablish districts within the one cooperative marketing associations Definition of Handle production area and reapportion grower in the industry and allow all membership among the various 16. Modify the definition of handle to cooperatives the right to be represented districts. clarify that transporting fresh on the Committee. cranberries to foreign countries is 24. Establish a nomination process for Volume Regulations considered handling and include the cooperative marketing associations. temporary cold storage or freezing of 4. Simplify criteria considered and set Outlets for Excess Cranberries forth more appropriate dates in withheld cranberries as an exemption establishing the Committee’s marketing from handling. 25. Expand the noncompetitive policy. outlets for excess cranberries by clearly Reporting Requirements defining what countries are authorized 5. Revise the formula for calculating for foreign development with excess sales histories under the producer 17. Relocate some reporting cranberries. allotment program in § 929.48. The provisions to a more suitable provision 26. Establish a limit on foreign revision includes providing additional and streamline the language relating to markets eligible for shipments of excess sales history to compensate growers for verification of reports and records. berries as foreign markets with a total expected production on younger acres. Deletion of Obsolete Provision annual consumption of less than the This proposed change to § 929.48 would 18. Delete an obsolete provision from equivalent of 20,000 barrels of also allow for more flexibility in the order relating to preliminary cranberries and/or cranberry products. recommending changes to the formula; regulation. add authority for segregating fresh and Proposal Submitted by Doanne processed sales; and allow Proposals Submitted by Stephen L. Andresen compensation for catastrophic events Lacey on Behalf of Clement Pappas and Doanne Andresen, a cranberry grower that impact a grower’s crop for more Company, Inc., and Cliffstar from Duxbury, Massachusetts, proposed than 2 years. Corporation the following amendment. 6. Remove specified dates relating to Two handlers proposed amendments 27. Authorize an exemption from when information is required to be filed in two areas of program operations. order provisions for the first 1000 by growers/handlers in order to issue These proposed amendments are barrels of cranberries produced by each annual allotments. summarized below. grower. 7. Allow growers to transfer allotment 28. The Fruit and Vegetable Programs Administrative Body during a year of volume regulation. of the Agricultural Marketing Service Currently, growers must lease their 19. Require Committee member (AMS) proposes to allow such acreage in order to transfer allotment. disclosure of non-regulated cranberry conforming changes to the order which 8. If volume regulation is production. may be necessary as a result of the recommended by the Committee, 20. Alter the way nominations of hearing. require the Committee to recommend cooperative members on the Committee None of these proposals have received producer allotment program by March 1 are conducted by requiring cooperative the approval of USDA. The Committee each year and to recommend a nominees to be selected through an and the other interested parties believe withholding program as soon as election process administered by the that the proposed changes would practicable after August 1. Committee. Currently, the cooperative improve the administration, operation, 9. Authorize the implementation of nominates its members without an and functioning of the order. the producer allotment and withholding election process. The public hearing is held for the purpose of: (i) Receiving evidence about programs in the same year. Volume Regulations the economic and marketing conditions 10. Add specific authority to exempt 21. Incorporate a handler marketing which relate to the proposed fresh, organic or other forms of pool under the producer allotment amendments of the order and any cranberries from order provisions. program to allow handlers without appropriate modifications thereof; (ii) 11. Allow for greater flexibility in surplus access to cranberries to meet determining whether there is a need for establishing other outlets for excess customer needs. This proposal would the proposed amendments to the order; cranberries. allow purchases from the pool by non- (iii) determining the economic impact of 12. Update and streamline the surplus handlers at the same price the proposed amendments on the industry withholding volume control provisions. handlers pay their growers. in the production area and on the public Production Area 22. Modify the withholding volume affected by the amendments; and (iv) regulations by allowing growers to be determining whether the proposed 13. Add Maine, Delaware, and the compensated under the buy-back amendments or any appropriate entire State of New York to the provisions if any funds are returned to modifications thereof will tend to production area. the handler by the Committee. effectuate the declared policy of the Act.
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Testimony is invited at the hearing on PART 929—CRANBERRIES GROWN IN public member and public alternate all the proposals and recommendations THE STATES OF MASSACHUSETTS, member shall not be a cranberry grower, contained in this notice, as well as any RHODE ISLAND, CONNECTICUT, NEW processor, handler, or have a financial appropriate modifications or JERSEY, WISCONSIN, MICHIGAN, interest in the production, sales, alternatives. MINNESOTA, OREGON, marketing or distribution of cranberries All persons wishing to submit written WASHINGTON, AND LONG ISLAND IN or cranberry products. The committee, material as evidence at the hearing THE STATE OF NEW YORK with the approval of the Secretary, shall should be prepared to submit four prescribe qualifications and procedures copies of such material at the hearing 1. The authority citation for 7 CFR for nominating the public member and and should have prepared testimony part 929 continues to read as follows: public alternate member. available for presentation at the hearing. Authority: 7 U.S.C. 601–674. From the time the notice of hearing is (c) Members shall represent each of issued and until the issuance of a final 2. Testimony is invited on the the following subdivisions of the following proposals or appropriate decision in this proceeding, USDA production areas in the number alternatives or modifications to such employees involved in the decisional specified in Table 1. Members shall proposals. process are prohibited from discussing reside in the designated district of the the merits of the hearing issues on an ex Proposals submitted by the Cranberry Marketing Committee: production area from which they are parte basis with any person having an nominated and selected. Provided, that interest in the proceeding. The Administrative Body there shall also be one cooperative or prohibition applies to employees in the Proposal No. 1 independent member-at-large who may following organizational units: Office of be nominated from any of the marketing Revise § 929.20 to read as follows: the Secretary of Agriculture; Office of order districts. the Administrator, AMS; Office of the General Counsel, except any designated § 929.20 Establishment and membership. District 1: The States of employees of the General Counsel (a) There is hereby established a Massachusetts, Maine, Rhode Island, assigned to represent the Committee in Cranberry Marketing Committee Connecticut; and New York. consisting of 13 industry members, and this rulemaking proceeding; and the District 2: The States of New Jersey 9 industry alternate members. Except as Fruit and Vegetable Programs, AMS. and Delaware. Procedural matters are not subject to hereafter provided, members and the above prohibition and may be alternate members shall be growers or District 3: The States of Wisconsin, discussed at any time. employees, agents, or duly authorized Michigan, and Minnesota. representatives of growers. District 4: The States of Oregon and List of Subjects in 7 CFR Part 929 (b) The committee shall include one Washington. Cranberries, Marketing agreements, public member and one public alternate Reporting and recordkeeping member nominated by the committee requirements. and selected by the Secretary. The
TABLE 1
Cooperative Cooperative Independent Independent Districts members alternates members alternates
1 ...... 2 1 2 1 2 ...... 1 1 1 1 3 ...... 2 1 2 1 4 ...... 1 1 1 1 Any ...... 1 cooperative or independent member-at-large
(d) The committee may establish, with (b) Beginning on August 1 of the even- § 929.22 Nomination. the approval of the Secretary, rules and numbered year following the adoption (a) Beginning on June 1 of the even- regulations for the implementation and of this amendment, committee members numbered year following the adoption operation of this section. shall be limited to three consecutive of this amendment, the committee shall Revise § 929.21 to read as follows: terms. This limitation on tenure shall hold nominations in accordance with not include service on the committee this section. § 929.21 Term of office. prior to the adoption of this amendment (b) Whenever any cooperative marketing organization sells more than (a) The term of office for each member and shall not apply to alternate members. fifty percent of the total volume of and alternate member of the committee cranberries sold during the fiscal period shall be for two years, beginning on (c) Members who have served three in which nominations for membership August 1 of each even-numbered year consecutive terms must leave the on the committee are made, the and ending on the second succeeding committee for at least one full term cooperative or growers affiliated July 31. Members and alternate before becoming eligible to serve again. therewith shall nominate: members shall serve the term of office The consecutive terms of office for (1) Six qualified persons for for which they are selected and have alternate members shall not be so cooperative members and four qualified been qualified or until their respective limited. persons for cooperative alternate successors are selected and have been Revise § 929.22 to read as follows: members of the committee. Nominee(s) qualified. for cooperative member and cooperative
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alternate member shall represent appear on the nomination ballot for that (h) The committee, with the approval growers from each of the marketing district. of the Secretary, may issue rules and order districts designated in § 929.20. (2) Election of the independent regulations to carry out the provisions (2) The seventh cooperative member member nominees and independent or to change the procedures of this shall be referred to as member-at-large. alternate member nominees shall be section. The member-at-large may be nominated conducted by mail ballot. Revise § 929.23 to read as follows: from any of the marketing order (3) Eligible independent growers shall § 929.23 Selection. districts. participate in the election of nominees (3) Six qualified persons for from the district in which they reside. (a) From nominations made pursuant independent members and four (4) When voting for independent to § 929.22(a), the Secretary shall select qualified persons for independent member nominees, each eligible grower members and alternate members to the alternate members of the committee shall be entitled to cast one vote on committee on the basis of the shall be nominated by those growers behalf of him/herself. representation provided for in § 929.20 who market their cranberries through (5) The nominee receiving the highest and in paragraph (b) or (c) of this other than cooperative marketing plurality of votes cast in districts two section. organizations. Nominees for and four shall be the independent (b) Whenever any cooperative independent member and independent member nominee from that district. The marketing organization sells more than alternate member shall represent nominee receiving the second highest 50 percent of the total volume of growers from each of the marketing plurality of votes cast in districts two cranberries sold during the fiscal year in order districts as designated in and four shall be the independent which nominations for membership on § 929.20(c). alternate member from that district. the committee are made, the Secretary (c) Whenever any cooperative (6) The nominees receiving the shall select: marketing organization sells less than (1) Six cooperative members and four highest and second highest plurality of fifty percent of the total volume of cooperative alternate members from votes cast in districts one and three cranberries sold during the fiscal period nominations made pursuant to shall be the independent member in which nominations for membership § 929.22(b)(1). nominees from that district. The on the committee are made, the (2) One cooperative member-at-large nominee receiving the third highest cooperative or growers affiliated from nominations made pursuant to plurality of votes cast in districts one therewith, shall nominate: § 929.22(b)(2), and and three shall be the independent (1) Six qualified persons for (3) Six independent members and alternate member from that district. cooperative members and four qualified four independent alternate members (e) Nominations for the independent persons for cooperative alternate from growers who market their member-at-large shall be made through members of the committee. Nominees cranberries through other than a call for nominations sent to all eligible for member and alternate member shall cooperative marketing organizations growers residing within the marketing represent growers from each of the made pursuant to § 929.22(b)(3). marketing order districts as designated order districts. The call for such (c) Whenever any cooperative in § 929.20(c). nominations shall be by such means as marketing organization sells less than 50 (2) Six qualified persons for recommended by the committee and percent of the total volume of independent members and four approved by the Secretary. cranberries sold during the fiscal year in qualified persons for independent (1) Election of the member-at-large which nominations for membership on alternate members of the committee shall be held by mail ballot sent to all the committee are made, the Secretary shall be nominated by those growers eligible independent growers in the shall select: who market their cranberries through marketing order districts by such date (1) Six cooperative members and four other than cooperative marketing and in such form as recommended by cooperative alternate members from organizations. Nominees for the committee and approved by the nominations made pursuant to independent member and independent Secretary. § 929.22(c)(1). alternate member shall represent (2) Eligible growers casting ballots (2) Six independent members and growers from each of the marketing may vote for a member-at-large nominee four independent alternate members order districts as designated in from marketing order districts other from nominations made pursuant to § 929.20(c). than where they produce cranberries. § 929.22(c)(2). (3) The seventh member nominee (3) When voting for the member-at- (3) One independent member-at-large shall be referred to as the independent large nominee, each eligible grower from nominations made pursuant to member-at-large. The member-at-large shall be entitled to cast one vote on § 929.22(c)(3). may be nominated from any of the behalf of him/herself. Revise § 929.32 to read as follows: marketing order districts. (4) The nominee receiving the highest (d) Nominations of qualified plurality of votes cast shall be § 929.32 Procedure. independent member nominees shall be designated the independent member-at- (a) Ten members of the committee, or made through a call for nominations large nominee. The nominee receiving alternates acting for members, shall sent to all eligible growers residing the second highest plurality of votes constitute a quorum. All actions of the within each of the marketing order cast shall be declared the independent committee shall require at least ten districts. The call for such nominations alternate member-at-large nominee. concurring votes: Provided, if the public shall be by such means as are (f) The committee may request that member or the public alternate member recommended by the committee and growers provide their federal tax acting in the place and stead of the approved by the Secretary. identification number(s) in order to public member, is present at a meeting, (1) The names of all eligible nominees determine voting eligibility. then eleven members shall constitute a from each district received by the (g) The names and addresses of all quorum. Any action of the committee on committee, by such date and in such nominees shall be submitted to the which the public member votes shall form as recommended by the committee Secretary for selection no later than July require eleven concurring votes. If the and approved by the Secretary, will 1 of each even-numbered year. public member abstains from voting on
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any particular matter, ten concurring regulations for the implementation and of replanted acres, the sales history will votes shall be required for an action of operation of this section. be the average first year yields the committee. (depending on whether first harvested 1 Volume Regulations (b) The committee may vote by mail, or 2 years after planting or replanting) telephone, fax, telegraph, or other Proposal No. 4 as established by the committee and electronic means; Provided that any Revise § 929.46 to read as follows: multiplied by the number of acres. votes cast by telephone shall be (6) In addition to the sales history confirmed promptly in writing. Voting § 929.46 Marketing policy. computed in accordance with by proxy, mail, telephone, fax, (a) As soon as practicable before paragraphs (3) and (4) of this section, telegraph, or other electronic means March 1 the committee shall estimate additional sales history shall be shall not be permitted at any assembled the marketable quantity for the assigned to growers using the formula meeting of the committee. following crop year. x=(a¥b)c. The letter ‘‘x’’ constitutes the (c) All assembled meetings of the (b) Prior to August 31 of each crop- additional number of barrels to be committee shall be open to growers and year, the committee shall submit to the added to the grower’s sales history. The handlers. The committee shall publish Secretary a report setting forth its value ‘‘a’’ is the expected yield for the notice of all meetings in such manner as marketing policy for the crop-year. Such forthcoming year harvested acreage as it deems appropriate. marketing policy shall contain the established by the committee. The value following information for the current Proposal No. 2 ‘‘b’’ is the total sales from that acreage crop year: as established by the committee divided Revise § 929.27 to read as follows: (1) The estimated total production of by four. The value ‘‘c’’ is the number of cranberries; acres planted or replanted in the § 929.27 Alternate members. (2) The expected general quality of An alternate member of the specified year. For acreage with five such cranberry production; years of sales history: a = the expected committee, shall act in the place and (3) The estimated carryover, as of yield for the forthcoming sixth year stead of a member during the absence of September 1, of frozen cranberries and harvested acreage (as established by the such member, and may perform such other cranberry products; other duties as assigned. In the event of (4) The expected demand conditions committee); b = an average of the most the death, removal, resignation, or for cranberries in different market recent 4 years of expected yields (as disqualification of a member, an outlets; established by the committee); and c = alternate shall act for him/her until a (5) The recommended desirable total the number of acres with 5 years of sales successor for such member is selected marketable quantity of cranberries history. and has qualified. In the event both a including a recommended adequate (b) A new sales history shall be member and alternate member from the carryover into the following crop year of calculated for each grower after each same marketing order district are unable frozen cranberries and other cranberry crop year, using the formulas to attend a committee meeting, the products; established in paragraph (a) of this committee may designate any other (6) Other factors having a bearing on section, or such other formula(s) as alternate member to serve in such the marketing of cranberries. determined by the committee, with the approval of the Secretary. member’s place and stead at that Proposal No. 5 meeting provided that: (c) The committee, with the approval (1) A cooperative alternate member Revise § 929.48 to read as follows: of the Secretary, may adopt regulations shall not serve in place of an § 929.48 Sales history. to alter the number and identity of years independent member or the public to be used in computing sales histories, (a) A sales history for each grower including the number of years to be member. shall be computed by the committee in (2) An independent alternate member used in computing the average. The the following manner: committee may establish, with the shall not serve in place of a cooperative (1) For growers with acreage with 6 or member or the public member. more years of sales history, the sales approval of the Secretary, rules and (3) A public alternate member shall history shall be computed using an regulations necessary for the not serve in place of a cooperative average of the highest four of the most implementation and operation of this member or independent member. recent six years of sales. section. Proposal No. 3 (2) For growers with 5 years of sales (d) Sales histories, starting with the crop year following adoption of this Add a new § 929.28 to read as follows: history from acreage planted or replanted 2 years prior to the first part, shall be calculated separately for § 929.28 Redistricting. harvest on that acreage, the sales history fresh and processed cranberries. The (a) The committee, with the approval is computed by averaging the highest 4 amount of fresh fruit sales history may of the Secretary, may reestablish of the 5 years. be calculated based on either the districts within the production area and (3) For growers with 5 years of sales delivered weight of the barrels paid for reapportion membership among the history from acreage planted or by the handler (excluding trash and districts. In recommending such replanted 1 year prior to the first harvest unusable fruit) or on the weight of the changes, the committee shall give on that acreage, the sales history is fruit paid for by the handler after consideration to: computed by averaging the highest 4 of cleaning and sorting for the retail (1) The relative volume of cranberries the 5 years and shall be adjusted as market. Handlers using the former produced within each district. provided in paragraph (6). calculation shall allocate delivered fresh (2) The relative number of cranberry (4) For a grower with 4 years or less fruit subsequently used for processing to producers within each district. of sales history, the sales history shall growers’ processing sales. Fresh fruit (3) Cranberry acreage within each be computed by dividing the total sales sales history, in whole or in part, may district. from that acreage by 4 and shall be be added to process fruit sales history (4) Other relevant factors. adjusted as provided in paragraph (6). with the approval of the committee in (b) The committee may establish, with (5) For growers with acreage having the event that the grower’s fruit does not the approval of the Secretary, rules and no sales history, or for the first harvest qualify as fresh fruit at delivery.
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(e) The committee may recommend allotment determined by applying the to such acreage to the buyer. The seller rules and regulations to adjust a allotment percentage established and buyer shall file a sales transfer form grower’s sales history to compensate for pursuant to paragraph (b) of this section providing the committee with such catastrophic events that impact the to the grower’s sales history. information as may be requested so that grower’s crop for more than 2 years. (f) On or before such date as the buyer will have immediate access to determined by the committee, with the the sales history computation process. Proposal No. 6 approval of the Secretary, in which an (3) Partial sale of cranberry acreage. Revise § 929.49 to read as follows: allotment percentage is established by When less than the total cranberry the Secretary, the committee shall notify producing acreage is sold, sales history § 929.49 Marketable quantity, allotment percentage, and annual allotment. each handler of the annual allotment associated with that portion of the that can be handled for each grower acreage being sold shall be transferred (a) Marketable quantity and allotment whose total crop will be delivered to with the acreage. The seller shall percentage. If the Secretary finds, from that handler. In cases where a grower provide the committee with a sales the recommendation of the committee delivers a crop to more than one transfer form containing, but not limited or from other available information, that handler, the grower must specify how to the distribution of acreage and the limiting the quantity of cranberries the annual allotment will be percentage of sales history, as defined in purchased from or handled on behalf of apportioned among the handlers. § 929.48(a)(1), attributable to the acreage growers during a crop year would tend (g) Growers who do not produce being sold. to effectuate the declared policy of the cranberries equal to their computed (4) No sale of cranberry acreage shall Act, the Secretary shall determine and annual allotment shall transfer their be recognized unless the committee is establish a marketable quantity for that unused allotment to such growers’ notified in writing. crop year. handlers. The handler shall equitably (b) Allotment Transfers. During a year (b) The marketable quantity shall be allocate the unused annual allotment to of volume regulation, a grower may apportioned among growers by applying growers with excess cranberries who transfer all or part of his/her allotment the allotment percentage to each deliver to such handler. Unused annual to another grower. If a lease is in effect grower’s sales history, established allotment remaining after all such the lessee shall receive allotment from pursuant to § 929.48. Such allotment transfers have occurred shall be lessor attributable to the acreage leased. percentage shall be established by the reported and transferred to the Provided, That the transferred allotment Secretary and shall equal the marketable committee by such date as established shall remain assigned to the same quantity divided by the total of all by the committee with the approval of handler and that the transfer shall take growers’ sales histories including the the Secretary. place and the committee shall be estimated total sales history for new (h) Handlers who receive cranberries notified prior to August 1 of the year of growers. Except as provided in more than the sum of their growers’ volume regulation, or such other date as paragraph (g) of this section, no handler annual allotments have ‘‘excess recommended by the Committee and shall purchase or handle on behalf of cranberries,’’ pursuant to § 929.59, and approved by the Secretary. Transfers of any grower cranberries not within such shall so notify the committee. Handlers allotment between growers having grower’s annual allotment. who have remaining unused allotment different handlers may occur with the (c) In any crop year in which the pursuant to paragraph (g) of this section consent of both handlers. production of cranberries is estimated are ‘‘deficient’’ and shall so notify the (c) The committee may establish, with by the committee to be equal to or less committee. The committee shall allocate the approval of the Secretary, rules and than its recommended marketable unused allotment to all handlers having regulations, as needed, for the quantity, the committee may excess cranberries, proportional to each implementation and operation of this recommend that the Secretary increase handler’s total allotment. section. or suspend the allotment percentage (i) Growers who decide not to grow a Proposal No. 8 applicable to that year. In the event it is crop, during any crop year in which a found that market demand is greater volume regulation is in effect, may Revise § 929.51 to read as follows: than the marketable quantity previously choose not to assign their allotment to § 929.51 Recommendations for regulation. set, the committee may recommend that a handler. the Secretary increase such quantity. (j) The committee may establish, with (a) If the committee deems it (d) Issuance of annual allotments. the approval of the Secretary, rules and advisable to regulate the handling of The committee shall require all growers regulations necessary for the cranberries in the manner provided in to qualify for such allotment by filing implementation and operation of this § 929.52, it shall so recommend to the with the committee a form wherein section. Secretary by the following appropriate growers include the following dates: information: Proposal No. 7 (i) Allotment percentage program by (1) The amount of acreage which will Revise § 929.50 to read as follows: no later than March 1; be harvested; (ii) Withholding program as soon as (2) a copy of any lease agreement § 929.50 Transfers. practicable after August 1. Such covering cranberry acreage; (a) Leases and sales of cranberry recommendation shall include the free (3) The name of the handler(s) to acreage. and restricted percentages for the crop whom their annual allotment will be (1) When total or partial lease of year. delivered; cranberry acreage occurs, sales history (b) In arriving at its recommendations (4) Such other information as may be attributable to the acreage being leased for regulation pursuant to paragraph (a) necessary for the implementation and shall remain with the lessor. of this section, the committee shall give operation of this section. (2) Total sale of cranberry acreage. consideration to current information (e) On or before such date as When there is a sale of a grower’s total with respect to the factors affecting the determined by the committee, with the cranberry producing acreage, the supply of and demand for cranberries approval of the Secretary, the committee committee shall transfer all owned during the period when it is proposed shall issue to each grower an annual acreage and all associated sales history that such regulation should be imposed.
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With each such recommendation for § 929.61 Outlets for excess cranberries. from handling a portion of the regulation, the committee shall submit (a) Noncommercial outlets. Excess cranberries he acquires during such to the Secretary the data and cranberries may be disposed of in period. information on which such noncommercial outlets that the (b) Withheld cranberries may meet recommendation is based and any other committee finds, with the approval of such standards of grade, size, quality, or information the Secretary may request. the Secretary, meet the requirements condition as the committee, with the Proposal No. 9 outlined in paragraph (c) of this section. approval of the Secretary, may Noncommercial outlets include, but are prescribe. The committee or Revise § 929.52 to read as follows: not limited to: representatives of the committee shall § 929.52 Issuance of regulations. (1) Charitable institutions; and inspect all such cranberries. A (2) Research and development (a) The Secretary shall regulate, in the certificate of such inspection shall be projects. manner specified in this section, the issued which shall include the name (b) Noncompetitive outlets. Excess handling of cranberries whenever the and address of the handler, the number cranberries may be sold in outlets that Secretary finds, from the and type of containers in the lot, the the committee finds, with the approval recommendations and information location where the lot is stored, of the Secretary, are noncompetitive submitted by the committee, or from identification marks (including lot with established markets for regulated other available information, that such stamp, if used), and the quantity of regulation will tend to effectuate the cranberries and meet the requirements cranberries in such lot that meet the declared policy of the Act. Such outlined in paragraph (c) of this section. prescribed standards. Promptly after regulation shall limit the total quantity Noncompetitive outlets include but are inspection and certification, each such of cranberries which may be handled not limited to: handler shall submit to the committee a during any fiscal period by fixing the (1) Any nonhuman food use; and copy of the certificate of inspection (2) Other outlets established by the free and restricted percentages, applied issued with respect to such cranberries. committee with the approval of the to cranberries acquired by handlers in (c) Any handler who withholds from Secretary. accordance with § 929.54, and/or by handling a quantity of cranberries in (c) Requirements. The handler establishing an allotment percentage in excess of that required pursuant to disposing of or selling excess accordance with § 929.49. paragraph (a) of this section shall have (b) The committee shall be informed cranberries into noncompetitive or such excess quantity credited toward immediately of any such regulation noncommercial outlets shall meet the the next fiscal year’s withholding issued by the Secretary, and the following requirements, as applicable: obligation, if any B provided that such committee shall promptly give notice (1) Charitable institutions. A credit shall be applicable only if the thereof to handlers. statement from the charitable institution restricted percentage established shall be submitted to the committee pursuant to § 929.52 was modified Proposal No. 10 showing the quantity of cranberries pursuant to § 929.53; to the extent such Revise § 929.58 to read as follows: received and certifying that the excess was disposed of prior to such institution will consume the § 929.58 Minimum exemption. modification; and after such handler cranberries; furnishes the committee with such (a) Upon the basis of the (2) Research and development information as it prescribes regarding recommendation and information projects. A report shall be given to the such withholding and disposition. submitted by the committee, or from committee describing the project, Revise § 929.56 to read as follows: other available information, the quantity of cranberries contributed, and Secretary may relieve from any or all date of disposition; § 929.56 Special provisions relating to requirements pursuant to this part the (3) Nonhuman food use. Notification withheld (restricted) cranberries handling of cranberries in such shall be given to the committee at least (a) A handler shall make a written minimum quantities as the committee, 48 hours prior to such disposition; request to the committee for the release with the approval of the Secretary, may (4) Other outlets established by the of all or part of the cranberries that the prescribe. committee with the approval of the handler is withholding from handling (b) Upon the basis of the Secretary. A report shall be given to the pursuant to § 929.54(a). Each request recommendation and information committee describing the project, submitted by the committee, or from shall state the quantity of cranberries for quantity of cranberries contributed, and which release is requested and shall other available information, the date of disposition. Secretary may relieve from any or all provide such additional as the (d) The storage and disposition of all committee may require. Handlers may requirements pursuant to this part the excess cranberries withheld from handling of such forms or types of replace the quantity of withheld handling shall be subject to the cranberries requested for release as cranberries as the committee, with the supervision and accounting control of approval of the Secretary, may provided under either paragraph (b) or the committee. (c) of this section. prescribe. Forms of cranberries could (e) The committee, with the approval (b) The handler may contract with include cranberries intended for fresh of the Secretary, may establish rules and another handler for an amount of free sales or organically grown cranberries. regulations for the implementation and cranberries to be converted to restricted (c) The committee, with the approval operation of this section. of the Secretary, shall prescribe such cranberries that is equal to the volume rules, regulations, and safeguards as it Proposal No. 12 of cranberries that the handler wishes to may deem necessary to ensure that Revise § 929.54 to read as follows: have converted from his own restricted cranberries handled under the cranberries to free cranberries. provisions of this section are handled § 929.54 Withholding. (1) The handlers involved in such an only as authorized. (a) Whenever the Secretary has fixed agreement shall provide the committee the free and restricted percentages for with such information as may be Proposal No. 11 any fiscal period, as provided for in requested prior to the release of any Revise § 929.61 to read as follows: § 929.52(a), each handler shall withhold restricted cranberries.
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(2) The committee shall establish (3) The prices at which cranberries are making such disposition, will accrue to guidelines to ensure that all necessary being sold for processing in products, the committee’s general fund. documentation is provided to the (4) The prices at which handlers are (f) In the event any portion of the committee, including but not limited to, selling cranberry concentrate, and funds deposited with the committee the amount of cranberries being (5) The prices the committee has paid pursuant to paragraph (c) of this section converted and the identities of the to purchase cranberries to replace cannot, for reasons beyond the handlers assuming the responsibility for released cranberries in accordance with committee’s control, be expended to withholding and disposing of the free this section. purchase unrestricted (free percentage) cranberries being converted to restricted (6) Each request for release of cranberries to replace those withheld cranberries. withheld cranberries shall include, in cranberries requested to be released, (3) Cranberries converted to replace addition to all other information as may such requested amount of withheld released cranberries shall be inspected be prescribed by the committee, the cranberries shall be reduced accordingly and meet such standards as are quantity of cranberries the release is and such unexpended funds shall, after prescribed for withheld cranberries requested and shall be accompanied by deducting expenses incurred by the prior to disposal. a deposit (a cashier’s or certified check committee, will be refunded to the (4) Transactions and agreements made payable to the Cranberry handler who deposited the funds. The negotiated between handlers shall Marketing Committee) in an amount handler shall equitably distribute such include all costs associated with such equal to the twenty percent of the refund account among the growers transactions including the purchase of amount determined by multiplying the delivering to such handler. the free cranberries to be converted to number of barrels stated in the request (g) Inspection for restricted (withheld) restricted cranberries and all costs by the then effective amount per barrel cranberries released to a handler is not associated with inspection and disposal as determined in paragraph (c). required. of such restricted cranberries. No costs (7) Subsequent deposits equal to, but shall be incurred by the committee other not less than, the ten percent of the Production Area than for the normal activities associated remaining outstanding balance shall be Proposal No. 13 with the implementation and operation payable to the committee on a monthly of a volume regulation program. basis commencing on January 1, and Revise § 929.4 to read as follows: (5) Free cranberries belonging to one concluding by no later than August 31 § 929.4 Production area. handler and converted to restricted of the fiscal period. Production area means the States of cranberries on the behalf of another (8) If the committee determines such Massachusetts, Maine, Rhode Island, handler shall be reported to the a release request is properly filled out, Connecticut, New York, New Jersey, committee in such manner as prescribed is accompanied by the required deposit, Delaware, Wisconsin, Michigan, by the committee. contains a certification that the handler (6) The committee may establish, with is withholding such cranberries, and the Minnesota, Oregon, and Washington. the approval of the Secretary, rules and committee is able to determine it can Paid Advertising regulations for the implementation of purchase unrestricted (free percentage) this section. from other handlers to replace the Proposal No. 14 (c) Except as otherwise directed by withheld cranberries it shall release to Amend § 929.45 by revising paragraph the Secretary, as near as practicable to such handler the quantity of cranberries (a) to read as follows: the beginning of the marketing season of specified in his request. each fiscal period with respect to which (d) Funds deposited for the release of § 929.45 Research and development. the marketing policy proposes withheld cranberries, pursuant to (a) The committee, with the approval regulation pursuant to § 929.52(a), the paragraph (c) of this section, shall be of the Secretary, may establish or committee shall determine the amount used by the committee to purchase from provide for the establishment of per barrel each handler shall deposit handlers unrestricted (free percentage) production research, marketing with the committee for it to release to cranberries in an aggregate amount as research, and market development him, in accordance with this section, all nearly equal to, but not in excess of, the projects, including paid advertising, or part of the cranberries he is total quantity of the released cranberries designed to assist, improve, or promote withholding; and the committee shall as it is possible to purchase to replace the marketing, distribution, give notice of such amount of deposit to the released cranberries. consumption, or efficient production of handlers. Such notice shall state the (e) All handlers shall be given an cranberries. The expense of such period during which such amount of equal opportunity to participate in such projects shall be paid from funds deposit shall be in effect. Whenever the purchase of unrestricted (free collected pursuant to § 929.41, or from committee determines that, by reason of percentage) cranberries. If a larger such other funds as approved by the changed conditions or other factors, a quantity is offered than can be Secretary. different amount should therefore be purchased, the purchases shall be made (b) The committee may, with the deposited for the release of withheld at the lowest price possible. If two or approval of the Secretary, establish rules cranberries, it shall give notice to more handlers offer unrestricted (free and regulations as necessary for the handlers of the new amount and the percentage) cranberries at the same implementation and operation of this effective period thereof. Each price, purchases from such handlers section. determination as to the amount of shall be in proportion to the quantity of Definition of Cranberries deposit shall be on the basis of the their respective offerings insofar as such committee’s evaluation of the following division is practicable. The committee Proposal No. 15 factors: shall dispose of cranberries purchased Revise § 929.5 to read as follows: (1) The prices at which growers are as restricted cranberries in accordance selling cranberries to handlers, with § 929.57. Any funds received by § 929.5 Cranberries. (2) The prices at which handlers are the committee for cranberries so (a) Cranberries means all varieties of selling fresh market cranberries to disposed of, which are in excess of the the fruit Vaccinium Macrocarpon and dealers, costs incurred by the committee in Vaccinium oxycoccus, known as
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cranberries, grown in the production (c) Receipts. Each handler shall, upon § 929.22 Nomination area. request of the committee, file promptly (a) Beginning on June 1 of the even- (b) The Committee, with the approval with the committee a certified report as numbered year following the adoption of the Secretary, may modify this to each quantity of cranberries acquired of this amendment, the Committee shall definition. during such period as may be specified, hold nominations in accordance with and the place of production. Definition of Handle this section. (d) Handling reports. Each handler (b) Whenever any cooperative Proposal No. 16 shall, upon request of the committee, marketing organization sells more than Amend § 929.10 by revising file promptly with the committee a fifty percent of the total volume of paragraphs (a)(2) and (b)(4) to read as certified report as to the quantity of cranberries sold during the fiscal period follows: cranberries handled during any in which nominations for membership designated period or periods. on the committee are made, the growers § 929.10 Handle. (e) Other reports. Upon the request of affiliated therewith shall nominate: (a) * * * the committee, with the approval of the (1) Six qualified persons for (2) To sell, consign, deliver, or Secretary, each handler shall furnish to cooperative members and four qualified transport (except as a common or the committee such other information persons for cooperative alternate contract carrier of cranberries owned by with respect to the cranberries and members of the committee. Nominee(s) another person) fresh cranberries or any cranberry products acquired and for cooperative member and cooperative other way to place fresh cranberries in disposed of by such person as may be alternate member shall represent the current of commerce within the necessary to enable the committee to growers from each of the marketing production area or between the exercise its powers and perform its order districts designated in § 929.20. production area and any point outside duties under this part. (2) The seventh cooperative member thereof. (f) The committee may establish, with shall be referred to as member-at-large. (b) * * * the approval of the Secretary, rules and The member-at-large may be nominated (4) the cold storage or freezing of regulations for the implementation and from any of the marketing order excess or restricted cranberries for the operation of this section. districts. purpose of temporary storage during Revise § 929.64 to read as follows: (3) Six qualified persons for independent members and four periods when an annual allotment § 929.64 Verification of reports and percentage and/or a handler records. qualified persons for independent alternative members of the committee withholding program is in effect prior to The committee, through its duly shall be nominated by those growers their disposal, pursuant to §§ 929.54 or authorized agents, during reasonable who market their cranberries through 929.59. business hours, shall have access to any other than cooperative marketing handler’s premises where applicable Reports organizations. Nominees for records are maintained for the purpose independent member and independent Proposal No. 17 of assuring compliance and checking alternate member shall represent Revise § 929.62 to read as follows: and verifying records and reports filed growers from each of the marketing by such handler. § 929.62 Reports. order districts as designated in (a) Grower report. Each grower shall Deletion of Obsolete Provision § 929.20(c). (c) Whenever any cooperative file a report with the committee by Proposal No. 18 January 15 of each crop year, or such marketing organization sells less than other date as determined by the Remove § 929.47. fifty percent of the total volume of Proposals submitted by the Stephen L. committee, with the approval of the cranberries sold during the fiscal period Lacey on behalf of Clement Pappas and Secretary, indicating the following: in which nominations for membership (1) Total acreage harvested and Company, Inc., and Cliffstar on the committee are made, the growers whether owned or leased. Corporation: affiliated therewith, shall nominate: (2) Total commercial cranberry sales Administrative Body (1) Six qualified persons for in barrels from such acreage. cooperative members and four qualified (3) Amount of acreage either in Proposal No. 19 persons for cooperative alternate production, but not harvested or taken In addition to the Committee’s members of the committee. Nominees out of production and the reason(s) recommended changes as set forth in for member and alternate member shall why. Proposal No. 1, amend § 929.20 by represent growers from each of the (4) Amount of new or replanted redesignating paragraph (d) as marketing order districts as designated acreage coming into production. paragraph (e) and adding a new in § 929.20(c). (5) Name of the handler(s) to whom paragraph (d) to read as follows: (2) Six qualified persons for commercial cranberry sales were made. independent members and four (6) Such other information as may be § 929.20 Establishment and membership qualified persons for independent needed for implementation and * * * * * alternate members of the committee operation of this section. (d) Disclosure of unregulated shall be nominated by those growers (b) Inventory. Each person engaged in production. All grower members and who market their cranberries through the handling of cranberries or cranberry alternate grower members of the other than cooperative marketing products shall, upon request of the committee shall disclose annually any organizations. Nominees for committee, file promptly with the financial interest in the production of independent member and independent committee a certified report, showing cranberries or cranberry products that alternate member shall represent such information as the committee shall are not subject to regulation by this part. growers from each of the marketing specify with respect to any cranberries * * * * * order districts as designated in and cranberry products which were § 929.20(c). held by them on such date as the Proposal No. 20 (3) The seventh member nominee committee may designate. Revise § 929.22 to read as follows: shall be referred to as the independent
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member-at-large. The member-at-large (2) Eligible growers casting ballots establish a handler marketing pool by may be nominated from any of the may vote for a member-at-large nominee calculating the following for each marketing order districts. from marketing order districts other handler: (d) Nominations of qualified than where they produce cranberries. (1) Current Year’s Sales Potential— cooperative and independent member (3) When voting for the member-at- calculated as a specified percent of the nominees shall be made through a call large nominee, each eligible grower prior year’s sales plus an estimate for for nominations sent to all eligible shall be entitled to cast one vote on shrink. This sales potential estimate growers residing within each of the behalf of him/herself. may be reviewed and adjusted by the marketing order districts. The call for (4) The cooperative and independent committee based on actual sales reports such nominations shall be by such nominees receiving the highest plurality or demonstrated projected sales from means as are recommended by the of votes cast shall be designated the the handlers submitted prior to committee and approved by the member-at-large nominees. The September 1 of the year of volume Secretary. cooperative and independent nominees regulation. (1) The names of all eligible nominees receiving the second highest plurality of (2) Current Year’s Ending Inventory— from each district received by the votes cast shall be declared the alternate calculated as carry-in plus the current committee, by such date and in such member-at-large nominees. year’s handle minus the current year’s form as recommended by the committee (f) The committee may request that sales potential. This estimate may be and approved by the Secretary, will growers provide their federal tax reviewed and adjusted by the committee appear on the nomination ballot for that identification number(s) in order to based on actual sales reports from the district. determine voting eligibility. handlers submitted prior to September (2) Election of the cooperative and (g) The names and addresses of all 1. independent member nominees and nominees shall be submitted to the (3) Regulated Year’s Projected cooperative and independent alternate Secretary for selection no later than July Allotment—calculated as the handler’s member nominees shall be conducted 1 of each even-numbered year. sales history times the allotment percent by mail ballot. (h) The committee, with the approval recommended by the committee plus (3) Eligible cooperative and of the Secretary, may issue rules and any adjustments for new acreage. independent growers shall participate in regulations to carry out the provisions (4) Regulated Year’s Total Available the election of nominees from the or to change the procedures of this Supply—calculated as the handler’s district in which they reside. section. projected allotment plus the handler’s (4) When voting for cooperative and current year’s ending inventory. Volume Regulations (5) Regulated Year’s Projected Sales— independent member nominees, each calculated as a specified percent of the eligible grower shall be entitled to cast Proposal No. 21 prior year’s sales plus an estimate for one vote on behalf of him/herself. Replace § 929.47 to read as follows: shrink. (5) The cooperative and independent § 929.47 Handler marketing pool (6) Regulated Year’s Desired Ending nominees receiving the highest plurality Inventory—calculated as a percent of of votes cast in districts two and four (a) Handler marketing pool. In any each handler’s regulated year’s shall be the member nominees from that crop year in which a producer allotment projected sales. district. The cooperative and is recommended, the committee shall (7) Handler’s Total Needs—calculated independent nominees receiving the also recommend, subject to approval by as each handler’s regulated year’s second highest plurality of votes cast in the Secretary, the establishment of a projected sales plus the regulated year’s districts two and four shall be the Handler Marketing Pool as part of the desired ending inventory. alternate members from that district. Marketable Quantity. (8) Deficit/Surplus—calculated as the (6) The cooperative and independent (b) The committee shall determine on difference between the handler’s total nominees receiving the highest and or before March 1, the estimated number needs and the regulated year’s total second highest plurality of votes cast in of barrels of cranberries necessary for a available supply. district one and three shall be the handler marketing pool, and this (e) Supply and access to the pool. If member nominees from that district. amount shall be included with the a handler’s total needs for cranberries The cooperative and independent recommendation for the producer are more than its total available supply nominees receiving the third highest allotment regulation. The number of in the regulated year, then the handler plurality of votes cast in districts one barrels of cranberries necessary for the is considered to be in deficit and is and three shall be the alternates from pool may be adjusted on or before entitled to purchase cranberries from that district. September 1 of the year in which the pool. If a handler’s total available (e) Nominations for the cooperative volume regulation is established. supply of cranberries exceeds its needs and independent members-at-large shall (c) Calculating the size of the pool. At in the regulated year, then that handler be made through a call for nominations the time of the recommendation of a is considered to be in surplus and shall sent to all eligible growers residing producer allotment along with a handler be required to contribute cranberries to within the marketing order districts. marketing pool, the committee shall the pool. The call for such nominations shall be determine, based on handler reports, (f) If the total needs of those handlers by such means as recommended by the which handlers will have surplus with deficits is less than the total of committee and approved by the inventory and which handlers will be surplus cranberries available, then the Secretary. deficient under the recommended handlers with surplus shall contribute (1) Election of the cooperative and volume regulation. to the pool up to the total of the deficits independent members-at-large shall be (d) From the most recent completed in proportion to their percentage of the held by mail ballot sent to all eligible year of handler reports, the committee total surplus. growers in the marketing order districts shall use the figures reported by each (g) If the total deficit is greater than by such date and in such form as handler for total sales (including sales to the total of surplus cranberries recommended by the committee and other handlers), the carry-in inventory available, then the size of the pool is approved by the Secretary. and the number of barrels handled to limited to the total of the calculated
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surplus. In this case handlers with payments shall be made every 60 days cannot, for reasons beyond the surplus cranberries shall contribute in the amount specified by the committee’s control, be expended to their entire volume of surplus committee based on handler payments purchase unrestricted (free percentage) cranberries to the pool. No handler is to growers to date. Full settlement shall cranberries to replace those released, obligated to contribute more than the be made no later than August 31. The such unexpended funds shall, after handler’s surplus. committee shall immediately remit all deducting expenses incurred by the (h) Once the pool contributions by the partial payments received from committee in connecting with the handlers with surplus have been acquiring handlers to handlers supply purchase and disposition of cranberries assigned by the committee, the handlers the pool cranberries. Final pursuant to paragraph (c) of this section, with surplus shall maintain such reimbursement shall be made no later be offered and paid or credited to the volume in inventory to be available for than August 31. handler which deposited the funds for purchases by handlers with deficits. The (o) Pool expenses and proceeds. equitable distribution to its growers. In committee may request an accurate Expenses incurred by the committee in the event that the offer is not accepted accounting of the pool fruit by the administering the marketing pool shall or directions given by a handler to handler at any time. be paid from assessment funds. credit the funds within 90 days, the (i) Any pool cranberries not (p) Reports. Each handler shall file funds will accrue to the committee’s purchased by June 30 shall be released with the committee grower price general account. to the handler who contributed the information necessary to establish pool Proposals submitted by the Wisconsin cranberries. prices in such a manner as the Cranberry Cooperative: (j) Forms of cranberries, specifications committee may prescribe. This and location. Pool fruit may be made information shall be treated as Proposal No. 23 available to handlers with deficits as confidential and subject to the Revise § 929.22 to read as follows: process fruit directly from the field disclosure provisions of § 929.65. § 928.22 Nomination. during harvest where agreeable to (q) Regulations. The committee may handlers with surplus. Pool fruit shall establish, with the approval of the (a) Beginning on June 1 of the even- be made available as frozen fruit and as Secretary, rules and regulations, as numbered year following the adoption 50-brix concentrate. The committee needed, for the implementation and of this amendment, the committee shall based on the generally accepted operation of this section. hold nominations in accordance with specifications of the industry or this section. specifications used by USDA Proposal No. 22 (b) Whenever the combined sales of purchasing programs shall establish Amend § 929.56 by revising cranberries by all cooperative marketing quality specifications for each form of paragraphs (c) and (d) to read as follows: organizations equals or exceeds fifty fruit. percent of the volume of cranberries (k) The minimum amount of surplus § 929.56 Special provisions relating to sold during the fiscal period in which withheld (restricted) cranberries. Pool fruit handlers shall make available nominations for membership on the in a particular growing area shall be in * * * * * committee are made: direct proportion to that handler’s (c) Funds deposited for the release of (1) Six qualified persons for handle in that growing area. For withheld cranberries, pursuant to cooperative members and four qualified example, if a handler with surplus paragraph (a) of this section, shall be persons for cooperative alternative receives 50% of its crop in used by the committee to purchase from members of the committee shall be Massachusetts, then that handler shall handlers unrestricted (free percentage) nominated by the cooperative growers source at least 50% of its pool fruit from cranberries in an aggregate amount as in accordance with the nomination Massachusetts. nearly equal to, but not in excess of, the procedure in paragraph (d) of this (l) Handlers may make a request to the total quantity of the released cranberries section. Nominee(s) for cooperative committee for pool cranberries. The as it is possible to purchase to replace member(s) and cooperative alternative committee shall endeavor to source the the release cranberries. All handlers member(s) shall represent growers from form of fruit and preferred location to shall be given an opportunity to each of the marketing order districts meet the request of the handler based on participate in such purchase. If a larger designated in § 929.20. availability of cranberries requested. If quantity is offered than can be (2) Six qualified persons for the specifications requested cannot be purchased, the purchases shall be made independent members and four met, the committee shall negotiate with at the lowest prices possible. If two or qualified persons for independent handlers who have surplus to meet the more handlers offer at the same price, alternate members of the committee request to the extent possible. purchases from such handlers shall be shall be nominated by those growers (m) Pool pricing. in proportion to the quantity of their who market their cranberries through (1) A deficit handler may purchase respective offerings insofar as such other than cooperative marketing cranberries from the pool at an division is practicable. The cranberries organizations, in accordance with the acquisition price that is equal to the so purchased shall be disposed of by the nomination procedure in paragraph (e) price that handler is paying its growers committee as restricted cranberries in of this section. Nominee(s) for for the current crop. accordance with § 929.57. Any funds independent member(s) and (2) The reimbursement price received received by the committee for independent alternate member(s) shall for pool cranberries by handlers cranberries so disposed of, which are in represent growers from each of the contributing to the pool shall be the excess of the costs incurred by the marketing order districts as designated same as the acquisition price committee in making such disposition, in § 929.20(c). determined under subparagraph (1). shall be paid or credited to the handler (3) The seventh member shall be (n) Payment Terms. Handlers which deposited the funds for equitable referred to as cooperative member-at- acquiring cranberries from the pool distribution to its growers. large. The member-at-large may be shall deposit an initial payment of $5.00 (d) In the event any portion of the nominated from any of the marketing per barrel with the committee within 30 funds deposited with the committee order districts in accordance with days of receipt of product. Subsequent pursuant to paragraph (a) of this section paragraph (f) of this section.
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(c) Whenever the combined sales of (5) The nominee receiving the highest (1) Election of the member-at-large cranberries by all cooperative marketing plurality of votes cast in Districts 2 and shall be held by mail ballot sent to all organizations is less than fifty percent of 4 shall be the cooperative member eligible cooperative growers in the the total volume of cranberries sold nominee from that district. The nominee marking order districts by such date and during the fiscal period in which receiving the second highest plurality of in such form as recommended by the nominations for membership on the votes cast in Districts 2 and 4 shall be committee and approved by the committee are made: the cooperative alternate member from Secretary. (1) Six qualified persons for that district. (2) Eligible cooperative growers cooperative members and four qualified (6) The nominees receiving the casting ballots may vote for a member- persons for cooperative alternative highest and second highest plurality of at-large nominee from marketing order members of the committee shall be votes cast in Districts 1 and 3 shall be districts other than where they produce nominated by the cooperative growers the cooperative member nominees from cranberries. in accordance with the nomination that district. The nominee receiving the (3) When voting for the member-at- procedure in paragraph (d) of this third highest plurality of votes cast in large nominee, each eligible cooperative section. Nominee(s) for member(s) and Districts 1 and 3 shall be the cooperative grower shall be entitled to cast one vote alternate member(s) shall represent alternate member from that district. on behalf of him/herself. growers from each of the marketing (e) Nominations of qualified (4) The nominee receiving the highest order districts as designated in independent member nominees shall be plurality of votes cast shall be § 929.20(c). made through a call for nominations designated the cooperative member-at- (2) Six qualified persons for sent to all eligible independent growers large nominee. The nominee receiving independent members and four residing within each of the marketing the second highest plurality of votes qualified persons for independent order districts. The call for such cast shall be declared the cooperative alternate members of the committee nominations shall be by such means as alternate member-at-large nominee. shall be nominated by those growers are recommended by the committee and (g) Nominations for the independent who market their cranberries through approved by the Secretary. member-at-large shall be made through other than cooperative marketing (1) The names of all eligible nominees a call for nominations sent to all eligible organizations, in accordance with the from each district received by the independent growers residing within nomination procedure in paragraph (e) committee, by such date and in such the marketing order districts. The call of this section. Nominee(s) for form as recommended by the committee for such nominations shall be by such independent member(s) and and approved by the Secretary, will means as recommended by the independent alternate member(s) shall appear on the nomination ballot for that committee and approved by the represent growers from each of the district. Secretary. (2) Election of the independent marketing order districts as designated (1) Election of the member-at-large member nominees and independent in § 929.20(c). shall be held by mail ballot sent to all (3) The seventh member nominee alternate member nominees shall be eligible independent growers in the shall be referred to as the independent conducted by mail ballot. marketing order districts by such date member-at-large. The member-at-large (3) Eligible independent growers shall and in such form as recommended by may be nominated from any of the participate in the election of nominees the committee and approved by the marketing order districts in accordance from the district in which they reside. Secretary. with paragraph (g) of this section. (4) When voting for independent (d) Nominations of qualified member nominees, each eligible grower (2) Eligible independent growers cooperative member nominees shall be shall be entitled to cast one vote on casting ballots may vote for a member- made through a call for nominations behalf of him/herself. at-large nominee from marketing order sent to all eligible growers affiliated (5) The nominee receiving the highest districts other than where they produce with a cooperative marketing plurality of votes cast in Districts 2 and cranberries. organization residing within each of the 4 shall be the independent member (3) When voting for the member-at- marketing order districts. The call for nominee from that district. The nominee large nominee, each eligible such nominations shall be by such receiving the second highest plurality of independent grower shall be entitled to means as are recommended by the votes cast in Districts 2 and 4 shall be cast one vote on behalf of him/herself. committee and approved by the the independent alternate member from (4) The nominee receiving the highest Secretary. that district. plurality of votes cast shall be (1) The names of all eligible nominees (6) The nominees receiving the designated the independent member-at- from each district received by the highest and second highest plurality of large nominee. The nominee receiving committee, by such date and in such votes cast in Districts 1 and 3 shall be the second highest plurality of votes form as recommended by the committee the independent member nominees cast shall be declared the independent and approved by the Secretary, will from that district. The nominee alternate member-at-large nominee. appear on the nomination ballot for that receiving the third highest plurality of (h) The committee may request that district. votes cast in Districts 1 and 3 shall be growers provide their federal tax (2) Election of the cooperative the independent alternate member from identification number(s) in order to member nominees and cooperative that district. determine voting eligibility. alternate member nominees shall be (f) Nominations for the cooperative (i) The names and addresses of all conducted by mail ballot. member-at-large shall be made through nominees shall be submitted to the (3) Eligible cooperative growers shall a call for nominations sent to all eligible Secretary for selection no later than July participate in the election of nominees cooperative growers residing within the 1 of each even-numbered year. from the district in which they reside. marketing order districts. The call for (j) The committee, with the approval (4) When voting for cooperative such nominations shall be by such of the Secretary, may issue rules and member nominees, each eligible grower means as recommended by the regulations to carry out the provisions shall be entitled to cast one vote on committee and approved by the or to change the procedures of this behalf of him/herself. Secretary. section.
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Proposal No. 24 (b) Non-Competitive Outlets. Excess § 929.104 Outlets for excess cranberries. Revise § 929.23 to read as follows: cranberries may be sold in outlets that (a) In accordance with § 929.61, the committee finds, with the approval excess cranberries may be disposed of § 929.23 Selection. of the Secretary, are non-competitive only in the following noncommercial or (a) From nominations made pursuant with established markets for regulated noncompetitive outlets, but only if the to § 929.22, the Secretary shall select cranberries and meet the requirements requirements in paragraph (b) of this members and alternate members to the outlined in paragraph (c) of this section. section are complied with: committee on the basis of the Noncompetitive outlets include but are representation provided for in not limited to: (1) Charitable institutions; § 929.20(c) and in paragraphs (b) and (c) (1) Any non-human food use; and (2) Research and development projects; of this section. (2) Foreign markets with a total (b) Whenever the combined sales of annual consumption of less than the (3) Any non-human food use; cranberries by all cooperative marketing equivalent of 20,000 barrels of (4) Foreign markets with a total organizations equals or exceeds fifty cranberries and/or cranberry products. annual consumption of less than the percent of the volume of cranberries The committee will annually publish a equivalent of 20,000 barrels of sold during the fiscal period in which report which lists foreign markets which cranberries or cranberry products; and nominations for membership on the have a total consumption of more than committee are made, the Secretary shall (5) Other outlets established by the the equivalent of 20,000 barrels of committee with the approval of the select: cranberries and/or cranberry products. (1) Six cooperative members and four Secretary. cooperative alternate members from (c) Requirements. The handler (b) Excess cranberries may not be nominations made pursuant to disposing of or selling excess converted into canned, frozen, or § 929.22(b)(1) and (d), cranberries into noncompetitive or dehydrated cranberries or other (2) Six independent members and noncommercial outlets shall meet the cranberry products by any commercial four independent alternate members following requirements, as applicable: process. Handlers may divert excess from growers who market their (1) Charitable institutions. A cranberries in the outlets listed in cranberries other than through statement from the charitable institution paragraph (a) of this section only if they cooperative marketing organizations, shall be submitted to the committee meet the requirements specified in pursuant to § 929.22(b)(2) and (e), and showing the quantity of cranberries § 929.61(c). (3) One cooperative member-at-large received and certifying that the Proposal submitted by Doanne from nominations made pursuant to institution will consume the Andresen, a Massachusetts grower: § 929.22(b)(3) and (f). cranberries; (c) Whenever the combined sale of (2) Research and development Proposal No. 27 cranberries by all cooperative marking projects. A report shall be given to the organizations is less than fifty percent of Amend § 929.58 by revising paragraph committee describing the project, (a) to read as follows: the total volume of cranberries sold quantity of cranberries contributed, and during the fiscal period in which date of disposition; § 929.58 Minimum exemption. nominations for membership on the (3) Non-human food use. Notification committee are made, the Secretary shall (a) Upon the basis of the shall be given to the committee at least recommendation and information select: 48 hours prior to such disposition; (1) Six cooperative members and four submitted by the committee, or from cooperative alternate members from (4) Foreign markets with a total other available information, the nominations made pursuant to § 929.22 annual consumption of less than the Secretary may relieve from any or all (c)(1) and (d). equivalent of 20,000 barrels of requirements pursuant to this part the (2) Six independent members and cranberries and/or cranberry products. handling of cranberries in such four independent alternate members A copy of the onboard bill of lading minimum quantities as the committee, from nominations made pursuant to shall be submitted to the committee with approval of the Secretary, may § 929.22(c)(3) and (g). showing the amount of cranberries prescribe including the first one (3) One independent member-at-large loaded for export; and thousand barrels produced by each from nominations made pursuant to (5) Other outlets established by the grower. § 929.22(c)(2) and (e). committee with the approval of the * * * * * Secretary. A report shall be given to the Proposal No. 25 The Fruit and Vegetable Programs, committee describing the project; Agricultural Marketing Service, Revise § 929.61 to read as follows: quantity of cranberries contributed, and submitted the following proposal: § 929.61 Outlets for excess cranberries. date of disposition. Proposal No. 28 (a) Noncommercial outlets. Excess (d) The storage and disposition of all excess cranberries withheld from cranberries may be disposed of in Make such changes as may be handling shall be subject to the noncommercial outlets that the necessary to the order to conform with supervision and accounting control of committee finds, with the approval of any amendment thereto that may result the committee. the Secretary, meet the requirements from the hearing. outlined in paragraph (c) of this section. (e) The committee, with the approval Dated: April 23, 2002. Noncommercial outlets include but are of the Secretary, may establish rules and not limited to: regulations for the implementation and A.J. Yates, (1) Charitable institutions; and operation of this section. Administrator, Agricultural Marketing (2) Research and development Service. Proposal No. 26 projects approved by the U.S. [FR Doc. 02–10526 Filed 4–25–02; 1:11 pm] Department of Agriculture. Revise § 929.56 to read as follows: BILLING CODE 3410–02–P
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Part IV
Environmental Protection Agency 40 CFR Parts 51, 52, et al.
Response to Court Remand on NOX SIP Call and Section 126 Rule; Final Rule
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ENVIRONMENTAL PROTECTION Programs, Clean Air Markets Division, methodology used to develop them were AGENCY U.S. Environmental Protection Agency, reasonable. Furthermore, in response to 1200 Pennsylvania Ave., NW. (6204N), the Court’s and commenters’ concerns, 40 CFR Parts 51, 52, 96, and 97 Washington, DC 20460, telephone (202) EPA has also reviewed new information [FRL–7203–3] 564–9172, e-mail at concerning current activity. This notice [email protected]. Questions on explains why EPA thinks that the
Response to Court Remand on NOX legal issues concerning today’s notice growth rates were reasonable based on SIP Call and Section 126 Rule should be addressed to Howard J. the information that EPA had available Hoffman, Office of General Counsel, at the time of the original rulemakings, AGENCY: Environmental Protection U.S. Environmental Protection Agency, as confirmed by new information. Agency (EPA). 1200 Pennsylvania Ave., NW. (2344A), Availability of Related Information ACTION: Response to court remand of Washington, DC 20460, telephone (202) rules. 564–5582, e-mail at The official record for the Section 126 [email protected] or Dwight C. rulemaking has been established under SUMMARY: In today’s document, EPA is Alpern, Clean Air Markets Division, docket number A–97–43. The official responding to two court decisions U.S. Environmental Protection Agency, record for the NOX SIP Call rulemaking directing EPA to reconsider heat input 1200 Pennsylvania Ave., NW. (6204N), has been established under docket growth rates projected and used in Washington, DC 20460, telephone (202) number A–96–56. The public version of setting nitrogen oxides (NOX) emission 564–9151, e-mail at both records, including printed, paper budgets in two rules designed to reduce [email protected]. versions of electronic comments, which interstate transport of ozone and NOX, does not include any information SUPPLEMENTARY INFORMATION: In today’s an ozone precursor. After reviewing the notice, EPA is responding to two rulings claimed as confidential business heat input growth rates and considering by the Court directing EPA to reconsider information, is available for inspection the court decisions and additional growth rates for heat input (i.e., fossil from 8:00 a.m. to 5:30 p.m., Monday comments, EPA has decided to continue fuel use) for the ozone season (May 1– through Friday, excluding legal to use the heat input growth rates September 30) projected and used in holidays. The rulemaking record is developed in the rules. One rule, the located at the U.S. Environmental setting State NOX emission budgets in NOX State Implementation Plan Call two rules designed to reduce interstate Protection Agency, 401 M Street, SW, (NOX SIP Call) under Section 110 of the 1 Waterside Mall, Room M–1500, transport of ozone and NOX. On May Clean Air Act (CAA), set ozone season 15, 2001, the Court issued a decision in Washington, DC 20460. In addition, the NOX emission budgets based, in part, on Appalachian Power v. U.S. EPA, 249 Federal Register rulemakings and emissions reductions calculated for F.3d 1032 (D.C. Cir. 2001) concerning associated documents are located at large, fossil fuel-fired electric generating the Section 126 Rule (‘‘Section 126 http://www.epa.gov/ttn/rto/, and certain units (EGUs) in 22 States and the Decision’’). As part of that decision, the documents are located at http:// District of Columbia. The second rule, Court remanded the heat input growth www.epa.gov/airmarkets/fednox/ issued in response to petitions by rates that EPA used to calculate NOX 126noda2/index.html. northeastern States under Section 126 of emission budgets set in response to Outline the CAA (Section 126 Rule), included several petitions by northeastern States I. Background ozone season NOX emission budgets for under Section 126 of the CAA. The A. NOX SIP Call EGUs in 12 States and the District of Court remanded these growth rates to B. Section 126 Rule Columbia. The U.S. Court of Appeals for EPA to either properly justify the C. Technical Amendments the District of Columbia Circuit (the growth rates currently used by EPA or II. Court Decisions Court) remanded the heat input growth to develop and justify new growth rates. A. Section 126 Decision rates to EPA to either properly justify On June 8, 2001, the Court issued a B. Technical Amendments Decision the growth rates currently used by EPA III. Notices of Data Availability similar decision in Appalachian Power IV. States Addressed in Today’s Notice or to develop and justify new growth v. U.S. EPA, 251 F.3d 1026 (D.C. Cir. rates. After reviewing the matter, EPA A. NOX SIP Call 2001) concerning heat input growth B. Section 126 Rule believes that the methodology used in rates used to develop NOX emission V. EPA’s Explanation of Heat Input Growth developing the heat input growth rates budgets used in the NOX SIP Call Rate Methodology and Response to Court and the resulting growth rates are related to interstate transport of ozone Remand and Public Comments reasonable based on the information (‘‘Technical Amendments Decision’’). A. Overview available at the time the rules were The Court raised concerns about EPA’s B. Description of EPA’s Methodology 1. EPA’s Methodology for Determining issued, confirmed by new information explanation of the methodology for concerning activity to date. State NOX Emission Budgets and Heat developing projected heat input growth Input Growth Rates ADDRESSES: Documents relevant to this rates and about States for which heat 2. Use of Consistent Heat Input Growth action are available for inspection at the input for EGUs had already exceeded Rates for Different Parts of EPA’s Docket Office, located at 401 M Street, the heat input that EPA projected for Analysis SW., Waterside Mall, Room M–1500, 2007. C. Justification for EPA’s Methodology and Washington, DC 20460, between 8:00 In response to the Court’s decisions, Reasonableness of EPA’s Underlying a.m. and 5:30 p.m., Monday through EPA has reviewed the heat input growth Assumptions 1. Court’s and Commenters’ Concerns Friday, excluding legal holidays. A rates for EGUs and the methodology 2. EPA Reasonably Decided to Develop reasonable fee may be charged for used to develop those growth rates. State NOX Emission Budgets by Using copying. Based on that review, EPA believes that Heat Input Growth Rates. FOR FURTHER INFORMATION CONTACT: the heat input growth rates and the 3. State Heat Input Growth Rates Based on IPM Outputs for 2001–2010 Were General questions, and questions on 1 Unless otherwise stated, all references in this Reasonably Representative of 1997–2007 technical issues concerning today’s notice to actual or projected ‘‘heat input’’ or ‘‘heat Heat Input Growth. notice should be addressed to Kevin input growth rates’’ concern heat input during the 4. EPA Did Not ‘‘Double Count’’ Electricity Culligan, Office of Atmospheric ozone season for EGUs. Demand Reductions Under CCAP.
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5. EPA’s Assumptions Regarding the achievable using the controls that EPA C. Technical Amendments Location of New Units Were Reasonable. determined to be highly cost effective. When EPA promulgated the NOX SIP D. Actual Heat Input Compared to EPA’s EPA defined highly cost-effective Projections of Heat Input Call on October 27, 1998, EPA reopened 1. Court’s and Commenters’ Concerns controls as those controls capable of public comment on the accuracy of data 2. EPA’s Heat Input Projections for the removing NOX at an average cost of upon which the emission inventories Region Are Consistent With Actual Heat $2,000 or less per ton. For EGUs, EPA and budgets were based (63 FR 57,427). Input Data. determined that it was highly cost On December 24, 1998, EPA extended 3. EPA’s Heat Input Growth Rates and 2007 effective to achieve an average emission the comment period ‘‘for emission Projections for Most States are not rate of 0.15 lb/mmBtu, based on inventory revisions to 2007 baseline Disputed by Commenters. projected 2007 fossil fuel use (i.e., heat 4. Historical Data Show That a State’s Heat sub-inventory information used to Input Can Decrease Significantly Over input). Projected 2007 heat input for establish each State’s budget in the NOX Multi-Year Periods. each State was calculated by applying SIP Call’’ and further explained that it 5. Approach of Using Recent State Heat ozone season heat input growth rates was seeking comment on the relevant Input to Project Future State Heat Input developed by EPA for each State for data and assumptions so the Agency is not Statistically Sound. EGUs (referred to as ‘‘State heat input could correct errors and update 6. EPA’s Heat Input Projections do not growth rates’’) to baseline (the higher of information used to compute the 2007 Implicitly Assume Negative Growth in 1995 or 1996) EGU heat input. Electricity Generation. budgets. (Correction and Clarification to 7. Even if There Were a Substantial Risk EPA recommended that a State could the Finding of Significant Contribution that EPA’s State Heat Input Projection meet the State’s NOX emission budget in and Rulemaking for Purposes of Would be Less Than a State’s Actual part by establishing a cap-and-trade Reducing Regional Transport of Ozone, 2007 Heat Input, This Would not Make 63 FR 71,220, Dec. 24, 1998). EPA also program for NOX emissions from EGUs. EPA’s Projection Unreasonable. Covered sources would be required to announced that it would reopen the 8. Commenters Overstated the Impacts of comment period on equivalent hold NOX allowances at least equal to Actual State Heat Input Exceeding inventory data for the section 126 their NOX emissions and could either Projected State Heat Input. rulemaking because the rules relied 9. Discussion of Individual States for obtain additional allowances or reduce Which EPA’s Heat Input Growth Rates emissions, e.g., by installing additional upon the same inventories. Id. are Disputed by Commenters. controls. The total number of Subsequently, EPA published two 10. No Heat Input Growth Methodology allowances distributed to EGUs would Technical Amendments revising the NO SIP Call emission budgets. In the has Been Presented That Would Have equal the EGU portion of the NO X Results That Better Comport With Actual X first Technical Amendment, EPA made emission budget, i.e., the projected 2007 Heat Input. some modifications to source-specific heat input multiplied by a NO E. Procedural Issues X 1995 and 1996 emissions data, which emission rate of 0.15 lb/mmBtu. States 1. Notice-And-Comment Rulemaking resulted in changes in the 2007 NO 2. Petition To Reconsider had the option of adopting approaches X emission budgets (Technical other than a cap-and-trade program to I. Background Amendment to the Finding of meet the budgets. Significant Contribution and A. NOX SIP Call B. Section 126 Rule Rulemaking for Certain States for In October 1998, EPA issued the NOX Purposes of Reducing Regional SIP Call—a final rule under Section On January 18, 2000, EPA issued a Transport of Ozone, 64 FR 26,298, May 110(k)(5) of the CAA, 42 U.S.C. final rule to control emissions of NOX 14, 1999). In the second Technical 7410(k)(5)—requiring 22 States and the under Section 126 of the CAA, 42 U.S.C. Amendment, EPA made more District of Columbia (‘‘upwind States’’) 7426. In the rule, EPA made final its corrections based upon additional to revise their SIPs to impose additional findings that stationary sources of NOX public comments it received and EPA’s 2 controls on NOX emissions. See emissions in 12 upwind States and the own internal review of the accuracy of Finding of Significant Contribution and District of Columbia contribute its data and calculations (Technical Rulemaking for Certain States in the significantly to ozone nonattainment in Amendment to the Finding of Ozone Transport Assessment Group northeastern States.3 This finding Significant Contribution and Region for Purposes of Reducing triggered direct Federal regulation of Rulemaking for Certain States for Regional Transport of Ozone, 63 FR stationary sources of NOX in the upwind Purposes of Reducing Regional 57,356 (Oct. 27, 1998). EPA concluded States. The Section 126 Rule further Transport of Ozone, 65 FR 11,222, Mar. that emissions from the upwind States established a cap-and-trade program for 2, 2000). EPA also explained that the ‘‘contribute significantly’’ to ozone NOX emissions within each upwind March 2000 Technical Amendment was nonattainment in downwind States, in jurisdiction, including NOX emissions ‘‘necessary to make the NOX SIP Call violation of section 110(a)(2)(D)(i). from EGUs. This program was inventory consistent with the inventory Under the NOX SIP Call, upwind States essentially the same as that suggested by adopted’’ by the EPA in the Section 126 are required to reduce emissions by EPA for State implementation in the rule, as the two rules were to be based amounts that would allow meeting NOX NOX SIP Call. EPA determined the total upon the same inventory. Id. emission budgets. EPA determined number of NO allowances to be II. Court Decisions these budgets by projecting NO X X distributed to EGUs in each individual A. Section 126 Decision emissions to 2007 for all source State based on the same methodology On May 15, 2001, the Court ruled on categories and then reducing those used in the NO SIP Call (i.e., projected X a number of challenges to EPA’s Section amounts by the emissions reductions 2007 heat input multiplied by a NO X 126 Rule. See Appalachian Power v. emission rate of 0.15 lb/mmBtu). 2 The States were: Alabama, Connecticut, EPA, 249 F.3d 1032. While the Court’s Delaware, Georgia, Illinois, Indiana, Kentucky, decision largely upheld the Section 126 Maryland, Massachusetts, Michigan, Missouri, New 3 The States were: Delaware, Indiana, Kentucky, Jersey, New York, North Carolina, Ohio, Maryland, Michigan, North Carolina, New Jersey, Rule, the Court remanded two issues to Pennsylvania, Rhode Island, South Carolina, New York, Ohio, Pennsylvania, Virginia, and West EPA. The Court remanded the Section Tennessee, Virginia, West Virginia, and Wisconsin. Virginia. 126 Rule to EPA to allow EPA to (1)
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Properly justify either the current or EPA states in the NODA that the decisions vacating EPA’s rules with new State heat input growth rates for Agency’s preliminary view is that the respect to certain States and EPA’s EGUs used in calculating projected State new data and the existing record in the response to those vacaturs. heat input for 2007 and (2) either NO SIP Call and Section 126 X A. NO SIP Call properly justify or alter its rulemakings appear to confirm the X As noted above, the NO SIP Call categorization of cogenerators that sell reasonableness of the heat input growth X covered 22 States and the District of electricity to the electricity grid as rates used by EPA in developing NO X Columbia. In reviewing the NO SIP EGUs. With regard to heat input growth emission budgets for EGUs. X Call, the Court vacated the NO SIP Call rates, the Court was concerned that EPA A second NODA was published on X for Georgia and Missouri on the ground may have used inconsistent growth rates March 11, 2002, 67 FR 10844. that there was insufficient record in different parts of the Agency’s Documents referenced in this NODA evidence concerning portions of those analysis and that some States already include, among other things, 2001 ozone States. Michigan v. EPA, 213 F.3d 663, had heat input exceeding the levels season heat input data and 1960–2000 685 (D.C. Cir., 2000). The record projected by EPA for 2007. EPA is annual heat input data and 1970–1998 included modeling by the Ozone responding to the remand related to the ozone season heat input data for the Transport Assessment Group (OTAG)— categorization of cogenerators in a District of Columbia and 21 States, a partnership among EPA, 37 eastern separate rulemaking (Interstate Ozone which are subject to the NOX SIP Call. States and the District of Columbia, Transport: Response to Court Decisions One comment was received on this industry, and environmental groups— in NO SIP Call, NO SIP Call notice. In the March 11, 2002 NODA, X X that divided the eastern U.S. into two Technical Amendments, and Section EPA stated that it might place additional 126 Rules, 67 FR 8396, Feb. 22, 2002). documents in the docket, with notice grids, the ‘‘fine grid’’ and the ‘‘coarse thereof provided on a particular grid.’’ The grids did not track State B. Technical Amendments Decision website. EPA did so at various times boundaries, and Georgia and Missouri On June 8, 2001, the Court ruled on after March 11, 2002. EPA also stated were split between the fine and coarse a number of challenges to EPA’s that if the Agency decided to confirm its grids. OTAG stated that, based on air Technical Amendments. See previously adopted heat input growth quality impacts, it was recommending Appalachian Power v. EPA, 251 F.3d rates, it intended to issue its response to NOX emission controls for the fine grid 1026. In its decision, the Court the remand by March 29, 2002. area but not the coarse grid area. In light remanded to EPA the same issues as in EPA received a comment on the of OTAG’s recommendations, the Court the Section 126 Decision concerning (1) March 11, 2002 NODA stating that there concluded that EPA had not sufficiently State heat input growth rates for EGUs was no reason to expect that EPA would explained the basis for including the and (2) cogenerators. The Court cited its take additional comments into entire States of Georgia and Missouri, decision in the Section 126 Decision. consideration since the Agency would rather than simply the fine grid Id., 251 F.3d at 1034. be issuing its response by March 29, portions. The Court vacated and 2002. The commenter also asserted that remanded the NOX SIP Call for these III. Notices of Data Availability both NODA’s failed to explain the States for agency reconsideration. The A Notice of Data Availability (NODA) relevance of the documents that were Court also vacated the rule for of documents that EPA was considering added to the docket. Wisconsin on grounds not relevant here. in response to the remand concerning On March 29, 2002, EPA informed the Id. at 681. heat input growth rates was published commenter in writing that the Agency’s On February 22, 2002, EPA issued a on August 3, 2001, 66 FR 40609). These response to the remand would be issued notice of proposed rulemaking in documents were placed in the NOX SIP on or about April 17, 2002 and that the response to the Court’s remand, (67 FR Call and section 126 Rule dockets. The Agency would consider comments 8396). In that notice, EPA stated that the new documents contain, among other submitted sufficiently in advance. In Agency does not intend to proceed at things, information and data on more addition, EPA noted that additional this time with further action evaluating recent electricity sales and generation. documents would be placed in the whether NOX emissions should be The information and data were not docket. EPA also identified the purposes reduced for ozone transport reasons in available when the two rules were for which the data referenced in the Wisconsin or the coarse grid portions of promulgated. Table 1 of the NODA March 11, 2002 NODA had been added Georgia and Missouri. In addition, EPA contains actual heat input values for the to the docket. (Docket # A–96–54, Item noted that, while not addressed by the 1995–2000 ozone seasons for the # XV–E–2.) Copies of all these Court, Alabama and Michigan also are District of Columbia and 21 States, documents and information were placed divided between the fine grid and the which are subject to the NOX SIP Call in the docket. EPA subsequently coarse grid in OTAG’s modeling. EPA and include the States subject to the received a second comment that was stated that it would therefore treat all Section 126 Rule. Comments on the new similar to the first comment, and EPA four States the same and include in the information and data were requested. referred the commenter to the relevant NOX SIP Call only counties that are Thirty-four comments were received. documents and information in the fully within the fine grid portions of the The NODA explains that there are docket. Finally, EPA received a third four States. EPA proposed partial State substantial fluctuations in State heat comment stating that the data NOX emission budgets for Alabama, input for EGUs on a year-by-year basis. referenced in the March 29, 2002 NODA Georgia, Michigan, and Missouri using Some of the reasons mentioned for these were highly germane and supported the State heat input growth rates fluctuations are forced outages, EPA’s heat input growth rate established for the whole States. variations in energy costs, weather, and methodology. EPA has taken the position that a economic conditions. A discussion of single heat input growth methodology the growth rate methodology used by IV. States Addressed in Today’s Notice should be consistently applied to each EPA to develop State heat input growth At the outset, it should be established State, and EPA received numerous rates for EGUs and of the rationale for which States should be addressed in comments disputing the application of different components of the today’s notice on the heat input growth EPA’s heat input growth methodology to methodology is included in the NODA. rate issue, in light of the Court’s these four States, as well as to three
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other States (i.e., Illinois, Virginia, and summarized below and explained more that its heat input projections remain West Virginia). Consequently, in the fully in the remainder of this notice. plausible and reasonable based on the context of responding to the remand on 1. EPA believes that its methodology following considerations: the heat input growth issue in today’s was reasonable in light of the record for a. The State heat input amounts notice, EPA’s analysis of the the NOX SIP Call and the Section 126 projected by EPA are reasonably reasonableness of that methodology and Rule, based on the following consistent with the actual heat input the resulting heat input growth rates considerations: a. EPA’s methodology data that have become available since includes Alabama, Georgia, Michigan, for projecting future heat input was the projections were made. On a and Missouri. As noted below, for logical and was consistently applied to regionwide basis, EPA’s projected heat Alabama, Georgia, and Missouri, EPA all NOX SIP Call States. EPA used an input for 2000 and 2001 are 0.1% lower has evaluated the reasonableness of the actual State heat input baseline (the and 2.0% higher respectively than methodology with respect to both the higher of 1995 or 1996 levels) in view actual regional heat input. Further, for entire State and the fine grid portion of year-to-year variability of State heat most States, EPA’s heat input growth alone. For Michigan, EPA evaluated the input. EPA applied to each State’s rates have not been specifically methodology for the entire State and not baseline a heat input growth rate challenged. Commenters have disputed for the fine grid portion alone because estimated using the Integrated Planning EPA’s heat input growth rates for seven the amount of NOX emissions in the Model (the IPM), a state-of-the-art model out of the 22 jurisdictions under the coarse grid portion was trivial for for analyzing future electricity markets. NOX SIP Call on the ground that the present purposes.4 EPA’s use of the IPM was upheld by the States involved had recent heat input Court. amounts exceeding, or close to, EPA’s B. Section 126 Rule b. Contrary to the Court’s 2007 heat input projections. However, understanding, EPA used consistent recently, heat input for several of these As noted above, the Section 126 Rule State heat input growth rates (i.e., States declined significantly. Moreover, covered 12 States and the District of growth rates based on 2001–2010 heat State heat input is quite variable from Columbia. Of the four States that EPA input growth determined using IPM year-to-year and so, in one year or over proposed to include only partially in the projections for 2001 and 2010) several years, may increase and then NOX SIP Call, only Michigan is subject throughout the analysis for the NOX SIP decrease. Indeed, there have been many to the Section 126 Rule. As discussed Call and the Section 126 Rule. EPA did instances in the past when State heat above, the NOX emission budget for not use, or even have available, 1996– input has decreased significantly for the Michigan changes very little when the 2000 heat input growth rates last year of a multi-year period as coarse grid portion of the State is determined using IPM projections for compared to the first year of such excluded, and EPA has therefore 1996 and 2000. EPA acknowledges that period. Consequently, the fact that a analyzed the heat input growth only for the Court’s misunderstanding on this State’s recent heat input exceeds, or is the entire State. In addition, with regard point stemmed from inadvertently close to, EPA’s 2007 heat input to the three other States concerning confusing statements EPA made in the projection does not by itself which EPA received adverse comments record. demonstrate that the projection, or the on its heat input projections, the Section c. The specific assumptions that EPA underlying heat input growth rate, is 126 Rule covers Virginia and West made in using the IPM to develop State unreasonable. Virginia, but not Illinois. As a result, heat input growth rates were reasonable. b. Commenters who argue that EPA’s strictly speaking, the validity of EPA’s These included assumptions that: (i) 2007 projection is unreasonable based growth rate methodology for the Section Heat input growth rates during 2001– on recent heat input data are in effect 126 Rule should not depend on its 2010 are reasonably representative of asserting that predicting a State’s 2007 application to Alabama, Georgia, heat input growth during 1996–2007; heat input based on trends in recent, Missouri, Illinois, or any other State (ii) electricity demand projections short-term heat input data is a better covered under the NOX SIP Call, but not should be reduced to take account of methodology than the one employed by the Section 126 Rule. demand reductions under the Climate EPA. Some commenters explicitly Challenge Action Program (CCAP); and V. EPA’s Explanation of Heat Input recommended this approach. In (iii) the use of available data on new Growth Rate Methodology and response, EPA examined this approach units and the historical distribution of Response to Court Remand and Public using historical annual heat input data generating capacity among States could and found that in most States, recent, Comments be used to project the location of new short-term data is an unreliable A. Overview units. predictor of a State’s heat input in the 2. The State heat input growth rates future. Therefore, EPA believes that its After a thorough review, EPA has and projections were generated using a methodology, using a state-of-the-art concluded that its methodology for reasoned methodology and reasonable model that takes into account many developing State heat input growth assumptions, along with data that went factors, including the dynamics of rates, and the resulting growth rates through full public review (and were regional electricity markets, is more themselves, were reasonable in light of not at issue in the Court remands), and rational. the record developed for the NO X SIP this suggests that the resulting heat c. Contrary to the Court’s Call and Section 126 Rule, and remain input projections are reasonable. To understanding, EPA’s 2007 heat input reasonable in light of new information confirm this, and to respond to concerns projections do not assume negative concerning current activity that has expressed by the Court and commenters growth in electricity generation. State since become available. The reasons are about the plausibility of EPA’s heat input (i.e., fossil fuel use for projections based on recent, actual heat generation) can decrease while 4 EPA is not analyzing the reasonableness of the input data, EPA has examined the electricity generation increases in the growth methodology with respect to Wisconsin projections in light of historical heat State or in the region as a whole. Within because the Court vacated the NOX SIP Call for that State and EPA does not intend, at present, to further input data and new heat input data that a State, electricity generation does not evaluate Wisconsin in the context of ozone have become available since the Agency necessarily vary with heat input transport. developed the projections. EPA believes because: (i) Significant amounts of
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electricity are produced using non-fossil economy therefore would be much less The result was each State’s NOX fuel generation; and (ii) efficiency than claimed by commenters. Further, emissions budget for EGUs. improvements (e.g., from replacement of the NOX SIP Call and the Section 126 Throughout the methodology, EPA old units with new, more efficient units) Rule are being implemented through a relied on the IPM. The IPM simulates make it possible to produce more NOX cap-and-trade program that further the operation of the electricity market in electricity with less heat input. Further, mitigates the cost impact of any the continental U.S. by using inputs electricity is generated and sold on a differences between projected and (such as electricity demand and fuel and regional, not on a State-by-State basis. actual State heat input. emission control costs) and by modeling Heat input and electricity generation f. No commenter has identified an electricity generation, transmission, and may decrease in one State because that alternative methodology for developing distribution on a subregional basis. The State is importing more electricity State heat input growth rates that would IPM projects the least cost scenario for generated in another State in the region. be likely to yield growth rates that the region for generating electricity This is consistent with increased would comport better with actual heat consistent with this set of inputs. This electricity generation in the region as a input data than the growth rates under scenario includes projections of which whole. EPA’s methodology. In light of the units operate at what levels, which units d. EPA’s heat input projections are variability of State heat input, it is quite install emission controls, and what type, simply required to be reasonable, not to possible that any alternative when, and where new units are built. match perfectly actual heat input. This methodology for predicting State heat To develop the State heat input is because the Courts recognize that input will result in projected values for growth rates, EPA first conducted an predictions of the results of complex some States that will not match actual IPM run (the ‘‘base case run’’). This base activities (in this case, future State heat heat input in some future year. case run was designed to yield, as input, which will result from operation g. Commenters failed to show that outputs, projections of the heat input of the regional electricity market) will EPA’s heat input growth rate for any of necessary to generate electricity not necessarily match actual, future the seven individual States for which sufficient to meet projected electricity results exactly. To require such adverse comments were received demand in the 2001 and 2010 ozone perfection would be to preclude the use (Alabama, Georgia, Illinois, Michigan, seasons. To conduct this run, EPA used, of projections or of a model to develop Missouri, Virginia, and West Virginia) as model inputs, assumptions regarding, such projections. EPA’s heat input are unreasonable. The heat input for among many other things: (i) electricity projections thus should not be several of the States has already demand in 2001–2020, which EPA considered unreasonable even if there decreased to levels below or only calculated by determining actual were a substantial risk that they would slightly above EPA’s projection. In electricity demand in 1997 and applying turn out to be less than States’ actual addition, the comments failed to growth rates in electricity demand for 2007 heat input, in light of all the other address the fact that, in the past, each 1997–2020; (ii) reductions in electricity circumstances. In this case, unavoidable State has had many multi-year periods demand based on the CCAP, discussed limitations on the accuracy of heat input when heat input has declined below; (iii) NO X emission control projections result from: (i) The significantly for the last year, as requirements and associated costs; (iv) complexity of the electricity marketing compared to the first year of such location and costs of projected new system, which cannot be modeled periods. Further, in arguing that units; and (v) fuel costs. For this base perfectly because of the necessity to use economic growth or planned new case run, EPA assumed no additional simplifying assumptions about factors capacity prove that heat input will NOX emission controls would be (e.g., fuel prices and electricity demand increase substantially for particular required for ozone transport purposes in the future) affecting future heat input; States, the commenters limited the (62 FR 60318, 60347, Nov. 7, 1997). With these inputs, the base case run (ii) the necessity to make State-by-State information they provided to statewide produced, as outputs, the sources of projections of heat input even though data and failed to provide regional data. electricity generation for years selected electricity is generated and sold on a As a result, these comments are not by EPA, including 2001, 2007, 2010, regional basis; and (iii) significant persuasive because any particular and 2020. In addition, the outputs variability—on a year-to-year and State’s heat input is determined by included the amounts of heat input used several year basis—inherent in State regional, not just that individual State’s, by the fossil-fuel-fired sources in those heat input. Therefore, EPA’s heat input demand and supply. projections should not be considered years, the projected NOX emissions for unreasonable in the current context, B. Description of EPA’s Methodology the 2007 ozone season, and the total cost for generating electricity for the even if there were a substantial risk that 1. EPA’s Methodology for Determining 2007 ozone season. they would turn out to be less than State NO Emission Budgets and Heat States’ actual 2007 heat input. X EPA used the 2001 and 2010 heat Input Growth Rates e. Commenters overstated the impacts input to generate heat input growth of a State’s 2007 heat input exceeding EPA used a multi-step procedure to rates for each State. For example, the EPA’s 2007 heat input projection for determine for each State the portion of base case run projected that Virginia’s that State. The NOX SIP Call and the the NOX SIP Call emissions budget base case 2001 and 2010 heat input Section 126 Rule limit NOX emissions, attributable to EGUs. In brief, EPA would be 194,000,000 mmBtu and not heat input. Even if a State’s actual started with the State’s baseline of the 243,000,000 mmBtu, respectively. An heat input for 2007 turns out to exceed higher of EGU heat input for 1995 and annual heat input growth rate was then the projected heat input, NOX emissions 1996 and grew that amount to the 2007 mathematically determined. For would increase at a much lower rate level using the projected heat input Virginia, this annual growth rate is than heat input because the vast growth rate for that State based on the 1.025. majority of new units are, and will IPM. Then, EPA determined the Then, EPA applied each State’s continue to be, gas-fired with very low appropriate level of NOX emissions annual heat input growth rate to the NOX emission rates and high efficiency. control (which was the same level for baseline heat input for the State (the The impact on the stringency of the each State) and applied this level to higher of the 1995 or 1996 actual heat NOX emission budget and on the State each State’s projected 2007 heat input. input for EGUs) to develop the State’s
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emission budget for 2007 (63 FR 57406– EPA then performed, for each NO X 2. Use of Consistent Heat Input Growth 57408). For example, for Virginia, the emission control level, three Rates for Different Parts of EPA’s 1995 heat input was 154,233,310 calculations to determine the cost per Analysis mmBtu, the 1996 heat input was ton of NOX emissions reduced, of One concern that the Court had about 172,633,028 mmBtu, and so EPA used meeting the regionwide NOX emission the reasonableness of EPA’s approach the 1996 heat input as the baseline heat budget associated with that control was the belief that EPA ‘‘utilized one set input. For West Virginia the opposite level. First, EPA subtracted the total of growth-rate projections to set occurred. The 1995 heat input was NOX emissions in the cost-effectiveness allowance budgets, [and] another to 347,687,307 mmBtu, and the 1996 heat run from the total NOX emissions in the assess emission reduction costs.’’ input was 341,738,426 mmBtu, and so base case run to calculate the tons of Appalachian Power v. EPA, 249 F.3d at EPA used the 1995 heat input as the NOX reduced due to the imposition of 1054. The Court therefore believed that baseline heat input. the control level. Second, EPA ‘‘EPA had other ways of generating 2007 Then, EPA applied to each State’s subtracted the total cost of generating utilization projections.’’ Id. The above baseline amount—which EPA treated as electricity in the base case run from the description of EPA’s multi-step the 1996 value even if the higher heat total cost in the cost-effectiveness run to procedure makes clear that, in fact, EPA input amount actually occurred in calculate the total cost of meeting the utilized only IPM heat input growth rate 1995—that State’s annual heat input growth rate to determine the projected regionwide budget. Third, EPA divided projections for 2001–2010. The 2007 heat input. For Virginia, this the total cost of meeting the budget by methodology required (i) developing computation (172,633,028 mmBtu the total tons reduced due to the many inputs in the IPM, including multiplied by 1.025 over an 11-year imposition of the control level to assumptions about growth in electricity period) yielded 227,875,597 mmBtu. calculate the cost effectiveness of demand during 1997–2020; (ii) Next, EPA used projected 2007 heat meeting the budget associated with the conducting an IPM base case run and a input to test the cost effectiveness of control level (in dollars per ton). For set of cost effectiveness runs; and (iii) using IPM outputs to make various various NOX emission control levels. example, the cost effectiveness of computations. However, at any step that First, EPA selected a set of NOX meeting the 0.15 lb/mmBtu control level emissions control levels as candidates to was $1,440 per ton of NOX emissions required IPM generated heat-input be tested for appropriateness. The levels reduced in 2007 (Regulatory Impact growth rate projections—whether for tested were, 0.12 pounds of NOX per Analysis for the NOX SIP Call, FIP, and purposes of determining a budget or for mmBtu of heat input (lbs/mmBtu), 0.15 Section 126 Petitions, Volume 1: Costs purposes of determining the cost lb/Btu, 0.2 lb/Btu, and 0.25 lb/Btu. and Economic Impacts, September 1998, effectiveness of control levels—EPA Then, EPA applied one of the control at p. ADD–2). Of course, the cost used only the projections for 2001– levels to each State’s projected 2007 effectiveness was a higher dollar 2010, and not any other period. heat input. For example, for Virginia the amount for more restrictive control EPA respectfully observes that the 2007 projected heat input of levels (e.g., 0.08 lb/mmBtu) and a lower Court’s views to the contrary are 227,875,597 mmBtu was multiplied by dollar amount for less restrictive control misperceptions that resulted from what EPA now realizes was EPA’s own 0.15 lb/mmBtu to obtain an EGU NOX levels (e.g., 0.2 lb/mmBtu). emission budget of 34,181,340 pounds inadvertently confusing statement by Finally, EPA evaluated the cost- or 17,091 tons. In this manner, EPA EPA in the Response to Comment calculated the NO emission budget for effectiveness level for each control level document for the Section 126 Rule. The X against certain criteria and selected 0.15 each State based on the level of NOX Response to Comment document states, emissions control to be tested. Then, lb/mmBtu as the highly cost effective in relevant part: level for EGUs. The basis for this EPA summed each State’s NOX The budgets were constructed using emissions budget to determine the selection, which is not at issue in growth rates for 1996–2007 that were regionwide NOX emissions budget for today’s notice, is discussed at 63 FR consistent with the growth rates in IPM for the NOX control level tested. 57401–2. 2001–2010, which may be higher or lower Then, EPA conducted another IPM Having selected 0.15 lb/mmBtu, EPA than the growth rates for the years 1996– 2001. EPA’s analysis of the costs of run (the ‘‘cost-effectiveness run’’) to set, as the NOX emission budget for determine the cost effectiveness of complying with these budgets, however, was EGUs for each State in the NOX SIP Call, conducted using IPM, which incorporates meeting the regionwide NOX emission the State’s budget associated with that internally consistent growth assumptions— budget for the control level tested. For control level. For example, for Virginia, i.e., the growth for 1996 through 2001 is this run, EPA included in the model the NOX emission budget for EGUs was based on IPM assumptions for 1996 through each of the assumptions that were used 17,091 tons. 2001, and the growth for 2001 through 2010 in the base case run. However, EPA is based on IPM assumptions for 2001 added one additional assumption, i.e., For the Section 126 Rule, which through 2010. These IPM growth forecasts are imposed requirements on individual consistent with the NERC forecasts. the requirement that total NOX EGUs in certain States, but did not emissions for EGUs in the NOX SIP Call Docket # A–97–43, Item # VI-C–01, region could not exceed the regionwide impose statewide control limitations, ‘‘Response to Significant Comments on NOX emission budget (i.e., the sum of EPA used the same State NOX emission the Proposed Findings of Significant the State NOX emission budgets for budgets that were developed for the Contribution and Rulemaking on EGUs developed using the 2001–2010 NOX SIP Call. For the individual EGUs Section 126 Petitions for Purposes of heat input growth rates from the base in a given State, EPA allocated a total Reducing Interstate Ozone Transport,’’ case run and the specified level of NOX amount of allowances equal to the April 1999 at p. 112. emission controls being tested). This amount of tons of NOX in the State NOX The first two sentences in the cost-effectiveness run yielded, as an emission budget for EGUs. Individual response refer to ‘‘growth rates,’’ output, the total cost of generating EGUs were allocated a proportionate ‘‘growth assumptions,’’ or ‘‘growth,’’ but electricity for the 2007 ozone season for share of the State NOX emission budget unfortunately fail to provide further the control level. EPA repeated this based on its share of the total heat input clarification as to what type of ‘‘growth’’ process for each control level tested. for EGUs in that State. is being referenced. The first sentence
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indicates that, for budget purposes, EPA results from the IPM, to develop heat SIP Call Decision and an earlier determined the ‘‘growth rates’’ for 1996– input growth rates. In particular, decision. Appalachian Power v. EPA, 2007 based on ‘‘the growth rates in IPM commenters were concerned about: 247 F.3d at 1052–53; Appalachian for 2001–2010.’’ The second sentence (1) The assumption that State-by-State Power v. EPA, 135 F.3d 791, 814–15 indicates that, for cost analysis heat input growth rates, derived from (D.C. Cir., 1998). As discussed below, purposes, EPA used ‘‘growth’’ for 1996– the IPM outputs for 2001 and 2010, EPA’s approach of determining the 2001 ‘‘based on IPM assumptions for were reasonably representative of, and growth rate of State heat input from one 1996 through 2001’’ and ‘‘growth’’ for reasonably used to calculate, heat input modeled year (here, 2001) to a later 2001 through 2010 ‘‘based on IPM growth rates for 1996 to 2007. modeled year (here, 2010) minimized assumptions for 2001 through 2010.’’ (2) The assumption that electricity the effect of necessary, simplifying However, the response fails to explain demand projections were reasonably assumptions used by the IPM and that the references in the first sentence reduced by reductions under the CCAP; thereby increased the accuracy of the to ‘‘growth rates’’ are to growth in heat and determination. input, which is an output from IPM runs (3) The assumption that the locations EPA considered alternative ways to for the years 2001 and 2010, while the of new units were reasonably projected handle heat input growth in references in the second sentence to the using currently available data on new determining State NOX emission ‘‘growth assumptions’’ and ‘‘growth’’ for units and the historical distribution of budgets. For example, EPA considered 1996–2001 and 2001–2010 are to growth generating capacity. not allowing for heat input growth at all. in electricity demand, which is an input As discussed below, EPA believes that Under this method, EPA would base into the IPM. The third sentence its methodology and, in particular, all of each State’s NOX emission budget on confirms that the ‘‘growth assumptions’’ the challenged assumptions had a heat input as of a selected year for in the second sentence are—like the reasonable basis. which historical data was available, without accounting for changes in ‘‘North American Electric Reliability 2. EPA Reasonably Decided To Develop Council (NERC) forecasts’’—for future heat input. In the NOX SIP Call, State NOX Emission Budgets by Using EPA rejected this method, explaining electricity demand. Heat Input Growth Rates The second sentence of the Response that although it would have been to Comment document should not be As noted above, EPA’s methodology simpler, it ‘‘may be viewed as less read to indicate that EPA had available for projecting 2007 heat input was equitable for States with significantly IPM-generated growth rates in heat based, in essence, on establishing a higher projected utilization,’’ (62 FR input for the 1996–2001 period. It is baseline based on actual heat input, and 60318, 60351, Nov. 7, 1997). simply not true that EPA had that data then applying an IPM-determined EPA also considered using, as the available. Rather, EPA had available growth rate to that baseline. The overall State NOX emission budget for each IPM-generated heat input data for only approach of using an actual baseline State, the amount of NOX emissions that 2001–2010, and EPA developed the and applying a growth rate was the IPM projected for the State in 2007 6 budgets and cost analyses in the manner reasonable and consistent with the way in the cost-effectiveness run. EPA did described in section V.B.1 of this notice. EPA projected utilization for other not use this approach for several Therefore, of course, EPA did not use stationary source categories. (Docket # reasons. First, this approach would have such data ‘‘to assess emission reduction A–96–56, Item # X–B–09, ‘‘Development made it difficult to accommodate costs’’ and could not have used such of Emission Budget Inventories for changes in the State inventory of EGUs data as another way ‘‘of generating 2007 Regional Transport NOX SIP Call’’, U.S. as EPA received better information utilization projections.’’ Appalachian EPA, Office of Air Quality Planning and regarding existing units. EPA undertook Power v. EPA, 249 F.3d at 2054.5 Standards, May 1999.) multiple notice-and-comment Starting with an actual baseline rulemakings to obtain the most accurate C. Justification for EPA’s Methodology obviously constitutes a reasonably data possible about existing units and and Reasonableness of EPA’s accurate starting point for the received new data through each Underlying Assumptions calculation. Because of the year-to-year rulemaking. It was relatively simple for 1. Court’s and Commenters’ Concerns variability in heat input, as discussed EPA to use this new information to below, EPA decided to allow each State adjust the State’s 1995 and 1996 While upholding in general EPA’s use to use the higher of two years as the emission inventories, and thus the of the IPM and not finding that any baseline. EPA initiated the NO SIP Call State’s baseline, and then apply specific assumptions or other aspects of X rulemaking in 1997, and so EPA projected future growth from the IPM to EPA’s methodology were unreasonable, selected as the two years 1995 and 1996. adjust the State’s NOX emission budget. the Court stated that ‘‘even in the face EPA’s approach overstated total actual If instead EPA had used the IPM 2007 of evidence [i.e., actual State heat input heat input for the region. Since some projected heat input, then, each time in excess of EPA’s projection] suggesting new data were received, EPA would the EPA’s projections were erroneous, States had higher heat input in one year and other States had higher heat input have had to rerun the IPM for 2007 with EPA never explained why it adopted the State inventory of EGUs revised to this particular methodology.’’ in the second year, the total of the States’ baselines exceeded the total heat include the new information. It would Appalachian Power v. EPA, 249 F.3d at have taken significant resources and 1053. input for the States in either of the time to change the IPM on several Moreover, commenters raised years. occasions to reflect this new concerns about certain assumptions that Applying to that baseline an IPM- EPA made in the IPM, or in using the generated heat input growth rate is also information. reasonable because the IPM provides a Further, the IPM is likely to be more accurate in projecting State-by-State 5 The portion of EPA’s brief on the growth rate reasonably accurate method of issue in Appalachian Power v. EPA reflects the predicting growth in heat input. The confusing response to comments. As discussed model has been thoroughly vetted 6 In addition, EPA considered, but rejected, the above and contrary to the suggestion in the brief (at through public comment in several approach of using a single, uniform heat input 71–2), the cost-effectiveness run and EPA’s cost- growth rate in developing all of the State NOX effectiveness analysis did not use ‘‘1996–2001 rulemakings and generally has been emission budgets. (See section D.IV.10 of this growth rates’’ for heat input. upheld by the Court in both the NOX notice.)
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rates of change of an output from one and cost of new units) must be used to IPM beginning with 2001 was year in an IPM run to another year in develop the heat input growth rates for reasonable. that IPM run (here, growth in State heat all States. The Court has already upheld As explained by the Court in the input from 2001–2010) than in EPA’s decision to rely on an internally Section 126 Decision: predicting an actual output State-by- consistent methodology for determining [T]he EPA has ‘‘undoubted power to use State in a particular year (here, actual heat input, as opposed to predictive models’’ so long as it ‘‘explain[s] heat input in 2007). This is because recommendations by various the assumptions and methodology used in modeling of complex activities requires commenters favoring State-specific preparing the model’’ and ‘‘provide[s] a the use of simplifying assumptions in growth rates that would have been complete analytic defense’’ should the model order to make the model feasible—from inconsistent with each other. be challenged. Small Refiner Lead Phase- the standpoint of resources and time— Appalachian Power v. EPA, 249 F.3d at Down Task Force v. EPA, 705 F.2d 506, 535 (D.C. Cir. 1983) * * * (citations and internal to run. This is particularly true here, 1052–53. quotation marks omitted). That a model is where EPA must develop State-by-State Since EPA was not aware of any available consistent set of heat input limited or imperfect is not, in itself, a reason projections of heat input that results to remand agency decisions based upon it. from complex activities (i.e., the growth rate projections, EPA developed Ultimately***we must defer to the operation of the regional electricity its own projections. EPA decided to use agency’s decision on how to balance the cost market). (See sections V.C.3 and V.D.7 the heat input values from IPM runs for and complexity of a more elaborate model of this notice.) Because the same 2001 and 2010 to calculate a long term against the oversimplification of a simpler assumptions were made for every year heat input growth rate for each State. model. We can reverse only if the model is Because, as discussed above, the IPM is so oversimplified that the agency’s modeled, calculating differences conclusions from it are unreasonable. Id. between two model years reduces any a comprehensive model of the inaccuracies caused by these electricity market, EPA believes that it Appalachian Power v. EPA, 294 F.3d at assumptions. Therefore, EPA believes provides reasonable heat input growth 1052. that, on a State-by-State basis, the IPM rate projections. Further, EPA believes The IPM was programed to model is likely to be more accurate in that heat input growth rates for the nine- specified years starting with 2001. EPA projecting rates of change between year period 2001–2010 were reasonably selected these run years to provide modeled years. representative of the eleven-year period information not just for the NOX SIP For these reasons, EPA decided that 1996–2007 because, among other things, Call and Section 126 Rule, but also for the approach of applying an IPM- the periods overlap and are of similar several other programs over the next few generated heat input growth rate for length. In addition, EPA believes that years, including implementation each State to a baseline State heat input the assumptions used in the IPM runs programs for the recently revised based on historical data would be a for 2001 and 2010 are reasonably National Ambient Air Quality Standards reasonably accurate predictor of the applicable to the 1996–2001 period as for ozone and fine particles. (Regulatory State’s actual heat input in 2007 and a well as 2001–2007. (See section V.D.7 of Impact Analysis for the NoX SIP Call, more accurate predictor, and this notice discussing assumptions in FIP and Section 126 Petitions, Volume significantly simpler and less costly the IPM.) In fact, out of the many 1: Costs and Economic Impacts, from an administrative standpoint, than assumptions in the IPM, commenters September 1998, at p.4–2., http:// IPM’s projection of the State’s 2007 heat have pointed to only a few that they www.epa.gov/ttn/rto/sip/ input. believe differ pre- and post-2001. As related.html#doc.) Adding more run discussed below, EPA examined the years (e.g., 1996) would not have 3. State Heat Input Growth Rates Based assumptions discussed by commenters provided information useful for those on IPM Outputs for 2001–2010 Were and maintains that these assumptions other programs, but would have added Reasonably Representative of 1996– do not differ in any way that would significant complexity and costs to the 2007 Heat Input Growth affect the reasonableness of the heat modeling. a. EPA’s Methodology. A number of input growth rates. The model consists of model plants commenters suggested that instead of EPA considered developing heat that represent individual generating using heat input growth rates based on input growth rates based on data units (e.g., fossil-fuel-fired boilers, 2001 to 2010 projections, EPA should developed by OTAG. OTAG developed nuclear units and hydro-electric units) have used State heat input growth rates a heat input growth projection that comprise the inventory of based on 1996 data and 2007 separately for each individual State for electricity producers. Duplicating projections. EPA believes that relying on the years 1990 to 2007 without precisely each of the boilers and the IPM projections for 2001 to 2010 is considering the interactions among the generators would be impracticable; reasonably accurate. individual States. EPA chose to use the accordingly, the model aggregates the Although EPA had information on, IPM growth rates because, unlike the fossil-fuel fired units into a series of and projections of, annual growth rates OTAG growth projections, the IPM’s model plants and aggregates the non- in regionwide electricity demand from were not developed separately for each fossil-fuel fired units into separate 1995 or 1996 to 2007 (which EPA used State, but were developed by analyzing model plants. (Docket # A–96–56, Item as inputs to the IPM), EPA was not performance of the electric industry as # V–C–03, Report on Analyzing Electric aware of any projected heat input a regionwide system. Therefore, the IPM Power Generation Under the Clean Air growth rates for that period for each growth rates are a more internally Act Amendments, at p. 5.) State in the NOX SIP Call region that consistent set of growth rates than the For each run year, EPA provides were developed using a consistent set of OTAG growth rates, (62 FR 60353). various inputs (i.e., constraints), such as assumptions. See, e.g., 63 FR 57409. b. Cost of adding run years. Some the requirement to meet a certain Since, as discussed in section V.D.6 of commenters questioned why EPA did electricity demand for each season and this notice, electricity is generated, not program the IPM to provide outputs each geographic subregion modeled. In transmitted, and distributed on a for 1996 in order to generate 1996–2007 addition, for each run year, the model regional basis, consistent assumptions heat input growth rates (in lieu of 2001– provides variables, which are values about regional and subregional factors 2010 growth rates) using the IPM. EPA based on the inputs, such as the level of (e.g., demand for electricity, fuel costs, believes that its decision to program the electricity generation from each model
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plant and the level of emission controls time periods and would result in 1.03% for 1996–2001 and 1.07%, for at a model plant. For each year the different heat input growth rates for 2001–2010. (Docket # A–96–56, Item # model is run, the model must optimize those periods. XV–C–22.) In short, while EPA assumed (i.e., determine the least cost scenario, As noted above, one of the inputs for somewhat lower CCAP reductions in including fuel mix, emission controls, the base case and cost-effectiveness IPM 1996–2001 than in 2001–2010, the and amount of operation) for every runs for 2001 and 2010 was projected Agency also assumed lower electricity model plant to reach each constraint in electricity demand. To determine demand growth without CCAP the model. The IPM includes thousands electricity demand, EPA began with adjustments in 1996–2001 than in 2001– of constraints and variables. available information for actual annual 2010. The net result was that EPA’s The complexity of the model—its electricity demand for 1997, projected projected electricity demand growth simulations, inputs, and variables— the increases out to the IPM run years, rates after CCAP adjustments were very means that each additional run year and then reduced those projections to similar for 1996–2001 and 2001–2010.8 adds many more calculations to the take account of reductions in electricity model, a task that requires time and demand expected to result from CCAP. 4. EPA Did Not ‘‘Double Count’’ resources. To keep the model CCAP is a Federal program started in Electricity Demand Reductions Under manageable, meet time schedules, and 1993 to significantly reduce emissions CCAP conserve resources, adding an of carbon dioxide (CO2) and thereby As noted above, one input into the additional run year would have meant address concerns about global climate IPM was electricity demand. EPA simplifying other assumptions within change. Since consumption of fossil fuel projected electricity demand by starting the model. In other words, because the to generate electricity is a significant with certain industry-sponsored number of equations would be increased contributor to CO2 emissions, a major forecasts for demand and then reducing by adding constraints and variables component of CCAP was a broad set of them by projected CCAP demand associated with a new run year, other voluntary programs designed to reduce reductions in accordance with a multi- ways would have had to be found to electricity demand and generation. agency task force’s projections, made for reduce the number of equations. This Commenters claimed that the purposes of a U.S. Department of State would have meant either reducing the assumptions for electricity demand report on the subject. number of (i) model plants; (ii) reductions due to CCAP for the years EPA received comments on the constraints, such as the number of 2001–2010 differed from what would August 3, 2001 NODA alleging that EPA subregions, which determines the have been used for the years 1996–2001. failed to explain, and, indeed, double number of electricity demand According to a commenter: counted the projected electricity demand reductions under CCAP. constraints; or (iii) variables, such as [b]ecause EPA’s assumed CCAP reductions NOX emission control technology increased by almost 300% from 2001 to 2010 According to commenters, the double options. . . . the electricity demand growth rate that counting led EPA to underestimate When developing the model, EPA had EPA used in its analysis decreased projected heat input for 2007. The EPA to decide ‘‘how to balance the cost and substantially from 2001 to 2010. Thus the believes that its CCAP assumptions are complexity of a more elaborate model record establishes that EPA itself assumed well supported by the record and that against the oversimplification of a vastly different electricity demand growth no double counting occurred. simpler model.’’ Small Refiner Lead rates for the 1996–2000 period than the a. EPA’s Methodology for Determining 2001–2010 period * * * Phase-Down Task Force v. EPA, 705 F. Electricity Demand. EPA started with 2d 506, 535 (D.C. Cir., 1983). Balancing In fact, however, the commenter’s electricity demand forecasts from the these factors, EPA decided to develop conclusion is contradicted by the NERC, which is a voluntary association the IPM to start in 2001. Under these record. The data in the record of most of the large electricity generators circumstances, the model adequately supporting IPM runs shows that EPA and sellers in the U.S. and whose served the needs of several programs— assumed electricity demand growth purpose is to promote the reliability and the NOX SIP Call, the Section 126 Rule, rates of 1.6% for 1997–2000 and 1.8% security of the electricity system. NERC and other programs. Moreover, EPA for 2001–2010. Actual electricity divides the continental U.S. into believed that heat input growth rates for demand in 1996 was 3,305 billion regions, each of which has its own the years 2001 to 2010 were reasonably KWh.7 EPA’s projected electricity council comprised of representatives of representative of growth during the demand without accounting for CCAP the utilities generating and selling period 1996 through 2007. In EPA’s was 3,575 billion KWh for 2001 and electricity in the region. Each utility judgment, any further refinement in the 4,198 billion KWh for 2010. EPA makes forecasts of electricity demand by heat input growth rate that may have projected that CCAP would result in its end-use customers and of electricity resulted from adding a 1996 run year electricity demand reductions of 100 supply available to that utility and would not have merited the additional billion KWh for 2001, and 389 billion submits these forecasts to the time and cost and may have been offset KWh for 2010 (Analyzing Electric appropriate NERC region. NERC by the increase in model inaccuracy that Power, Appendix 2 at A2–2). After compiles the individual utilities’ may have resulted from the consequent subtracting projected CCAP electricity demand and supply projections by need to further simplify or otherwise demand reductions from assumed region and reports the compiled limit the model. Therefore, EPA electricity demand, EPA projected projections to the Energy Information decided, on balance, that it was electricity demand of 3,475 billion KWh Agency (EIA).9 Since NERC forecasted reasonable to use 2001–2010 heat input for 2001,and 3,809 billion KWh for growth rates to develop the 2007 State 2010. This resulted in an annual growth 8 In addition, EPA notes that since the CCAP reductions are assumed to occur on a nationwide NOX emission budgets. rate for adjusted electricity demand of basis, any assumptions regarding CCAP would not c. Consistency of assumptions. Some have been the cause of State-by-State variation in commenters questioned whether the 7 Note that while EPA started its electric demand heat input growth rates. 2001–2010 heat input growth rate was forecasts using NERC forecasts for the year 1997, 9 EIA is an independent agency within the U.S. representative of growth during 1996– EPA used here the actual electricity demand for Department of Energy (DOE) that is responsible for, 1996 in order to demonstrate the effective growth among other things, collecting, compiling, and 2007, alleging that specific assumptions rate for 1996–2001, which is referenced by the reporting information on the U.S. electricity in the IPM were different for those two commenters. industry.
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electricity demand out to only 2006 at expressed in billion kilowatt hours reductions are well supported. The IPM the time that EPA was developing the (billion KWh) of electricity usage and documentation shows the amount of IPM for the NOX SIP Call, EPA used the mmBtu of heat input, or other units of actual electricity demand in 1997, and NERC electricity demand projections for measure appropriate for the program. the amount of projected electricity 1996 to 2006 and extended them to 2010 The workgroup compiled and reviewed demand from 1997 to 2010 (and using a 1995 forecast by DRI, a private those projections (Docket # A–96–56, beyond), all expressed in billion Kwh, consulting group. (Analyzing Electric Item # XIV–F–03). EPA used those (IPM basecase modeling runs, http:// Power, Appendix 2 at A2–3.) estimates to reduce the NERC-based www.epa.gov/capi/ipm/npr.htm). As Then, EPA reduced these electricity electricity demand projections for 2001 noted above, EPA based these demand projections by the amounts of through 2020. (See Analyzing Electric projections on information supplied by demand reductions expected to occur as Power, Appendix 2, at A2–3). In NERC. In addition, other IPM a result of CCAP. As described above, addition, DOE used those estimates to documentation shows the total amount CCAP, a Federal program established in project the amount of greenhouse gas of CCAP reductions, expressed in 1993, includes a broad collection of emissions reductions that would result billion kwh, for 2001 through 2010 (and voluntary programs designed to reduce from the CCAP programs. These beyond) (Analyzing Electric Power, electricity demand and generation to emissions reductions and other types of Appendix 2 at A2–2). reduce CO2 emissions. Some of these savings were included in the State These total amounts of CCAP programs were in existence before Department’s Climate Action Report. reductions ‘‘were taken from the CCAP’s establishment in 1993 and were b. The record contains sufficient supporting analysis that was done to incorporated into CCAP, along with a documentation of the additional CCAP forecast future U.S. carbon emissions new set of programs. CCAP was updated demand reductions that EPA took into from the power industry that appeared in 1995, a process that included revised account. Some commenters claimed, in in the U.S. Department of State’s estimates of the effectiveness of its response to the August 3, 2001 NODA, Climate Action Report, July 1997,’’ programs, based on public input that EPA did not provide adequate (Analyzing Electric Power, Appendix 2 solicited through a Federal Register documentation to explain how the at A2–3). Specifically, this supporting notice (60 FR 44022, Aug. 24, 1995) and electricity demand reductions under analysis consisted of a spreadsheet, a public hearing held on September 22, CCAP were derived. entitled ‘‘CCAP Inputs for April 1997 1995. See Review of Climate Change EPA notes that this issue—as well as Update,’’ developed by the above- Action Plan: Request for Public the issue of double-counting of CCAP described interagency work group Comment; Notice of Meeting, 60 FR demand reductions, discussed below— tasked with projecting the amount of 44022, August 24, 1995 (Council on was not raised in any of the rulemakings reductions for each CCAP program, Environmental Quality solicitation of to this point or brought to the Court’s (Docket # A–96–56, Item # XIV–F–03). public comment). attention in either the Section 126 or the The workgroup solicited information In 1997, the U.S. Department of State Technical Amendments cases. from the various agencies charged with (‘‘State Department’’) developed and Commenters had a full opportunity to administering CCAP programs and, issued a report, Climate Action Report, raise the issues during the development based on that information, prepared the setting forth the expected results from of the NOX SIP Call and Section 126 spreadsheet. No commenter requested CCAP. The report was developed to Rule. In fact, some of the parties raising this information during the NOX SIP fulfill an obligation under the 1992 the issues now claimed, in comments in Call and Section 126 rulemakings until United Nations Framework Convention the NOX SIP Call and Section 126 the comment period for the August 3, on Climate Change.10 The State rulemakings, that no CCAP electricity 2001 NODA. At that time, EPA provided Department first issued a draft report demand reductions should be the spreadsheet—annotated to reflect and requested public comment on two considered in projecting electricity the adjustment related to the NERC occasions, in December 1996 and May demand. These commenters based these forecasts, described below—to 1997. (See Preparation of Second U.S. claims on the ground that CCAP was a commenters when requested and placed Climate Action Report: Request for voluntary, rather than a mandatory, it in the docket, (Letter from John Seitz Public Comments, 62 FR 25988, May 12, program. Thus, these commenters to Andrea Bear Field, August 31, 2001, 1997). After considering the comments clearly had the opportunity during the Docket #A–96–56, Item #XIV–F–01, received, the State Department issued earlier rulemakings to raise the issues included as Attachment D to Docket the final report in 1997. The report concerning CCAP that they are raising Item #A–96–56–XIV–D–31). presented a consensus view of the only now. The spreadsheet identifies the amount Federal agencies involved, including The lack of attention to these issues of reductions, expressed in billion Kwh EPA, the U.S. DOE, and the State by commenters during the earlier and mmBtu of each of the dozen or so Department. rulemakings has some impact on the relevant CCAP programs, for the years In particular, to determine the extent to which the record addresses 2000 and 2010 (as well as 2020). The effectiveness of the CCAP programs, an them. Had commenters raised these amount of reductions from these interagency work group polled the issues earlier, EPA would have been programs for 2010—after the adjustment program managers at EPA, DOE, the obliged to respond, and the record related to the NERC forecasts, described U.S. Department of Transportation, and would have included that dialogue. below—equals the amount included for the U.S. Department of Agriculture who Thus, if the commenters view the record that year in Analyzing Electric Power, were responsible for the various CCAP as deficient, their failure to raise this Appendix 2 at A2–2. Moreover, the IPM programs. The program managers issue at several earlier junctures should documentation states that ‘‘EPA did a provided estimates of reductions for be considered. Moreover, it is linear interpolation’’ to determine the each CCAP program, generally questionable whether EPA is required, amount of CCAP reductions assumed for at this point, to address these issues in years between 2000 and 2010, including 10 Parties to the 1992 United Nations Framework light of the commenters’ earlier 2001, (Analyzing Electric Power, Convention on Climate Change (including the U.S.) agreed to submit reports detailing their emissions opportunities. Appendix 2 at A2–3). of greenhouse gases (such as CO2) and any strategies Even so, EPA maintains that its One commenter claimed that it was to reduce those emissions. assumptions about the CCAP demand not clear how EPA converted the CO2
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reductions cited in the State occurred and that commenters failed to program to encourage the purchase of Department’s Climate Action Report show otherwise. energy efficient office equipment. EPA into the electricity demand reductions assumed that because Green Lights and (i) NERC Forecasts set forth in Analyzing Electric Power or Energy Star Products-Office Equipment the spreadsheet used by EPA to adjust When EPA developed electricity were pre-existing programs, they were the NERC electricity demand forecasts. demand forecasts for the NOX SIP Call better established and their benefits Actually, the CO2 reductions in the and the Section 126 Rule, the NERC more predictable by the utilities in State Department report were based on forecasts did not mention the energy forecasting demand; as a result, EPA the electricity demand reductions in the efficiency programs as a factor that was assumed that the NERC forecasts were spreadsheet, not the other way around. considered. NERC explained only that it more likely to have already taken their As noted above, these electricity considered an ‘‘economic variable, reductions into account. These two demand reductions were developed by weather and a random component that programs were categorized as the agencies involved in implementing expresses unknown determinants of net commercial programs and were energy for load.’’ (Docket # A–96–56, CCAP and then were converted to CO2 projected to result in over 89 billion reductions for purposes of the State Item # XV–C–23, Peak Demand and Kwh in reduced electricity demand by Department report, using a U.S. DOE Energy Projection Bandwidths: 1997– 2010. (Docket # A–96–56. Item # XIV– model (the Integrated Dynamic Energy 2006 projections, p. 4, Load Forecasting F–01). By comparison, the remaining Analysis Simulation (IDEAS)) of the Work Group of the Engineering CCAP commercial programs resulted in U.S. energy system. These values were Committee North American Electric reduced electricity demand of 119.6 then included in the proposed and final Reliability Council, June 1997). billion Kwh. Id. Therefore, EPA versions of that report.11 Consequently, EPA had to exercise its assumed that the NERC forecasts c. Commenters failed to prove their best judgement in determining the accounted for over 42 percent of the claim that NERC and EIA projections extent to which the NERC forecasts took reductions from the commercial CCAP already included the CCAP demand into account CCAP demand reductions. programs, including the pre-1993 reductions that EPA took into account. Rather than assuming, from the absence programs. of any affirmative statements by NERC Commenters suggested that the NERC EPA also decided not to include about CCAP reductions, that NERC did electricity demand forecasts that EPA reductions from a fuel cells program and not consider any CCAP reductions, EPA adjusted for certain CCAP reductions renewable energy program, which were already assumed those reductions. took the more conservative approach of assuming that some of the reductions projected to total 24.5 billion Kwh by According to commenters, the NERC 2010, both for reasons of erring on the members that supplied the information were likely to have been considered by NERC. (See Docket # A–96–56, Item # side of the conservative (not including used in the NERC forecasts would have those reductions had the effect of been aware of, and in some cases XIV–F–03.) EPA reduced the NERC electricity demand forecasts only to take increasing electricity demand) and participated in, CCAP programs and so because adding them would have ‘‘would have * * * taken into account’’ account of the additional CCAP demand reductions beyond those EPA believed created some technical modeling CCAP programs in the information complexities. Specifically, EPA would supplied to NERC. The commenters were included in the NERC forecasts. EPA believed that it was appropriate to have had to decide at what level, and emphasized that NERC projected factor in these additional CCAP demand where, to allocate this capacity among electricity demand growth at an annual reductions ‘‘given the extensive the States within and outside of the rate of 1.7%, which is higher than EPA’s Administration, State, and business NOX SIP Call region. EPA decided, projection of 1.1%, and therefore efforts underway and the promising rather than make that judgment, to err concluded that EPA, by purportedly early results that EPA has seen in some on the side of the conservative by double-counting CCAP reductions, of the CCAP’s programs that have assuming that the fuel cell program and underestimated electricity demand. The substantially lowered electric energy renewable energy program did not commenters made a similar point with use and saved money for many reduce electricity. In addition, the respect to electricity demand forecasts businesses.’’ (Responses to Significant emission factors for fuel cells and by EIA, emphasizing that in 1997, EIA Comments on the Proposed Finding of biomass facilities that could have been projected electricity demand growth at Significant Contribution and employed were highly uncertain. (See 1.6% annually, and that, in making this Rulemaking for Certain States in the Docket # A–96–56, Item # XIV–F–01). projection, EIA explicitly noted that it Ozone Transport Assessment Group Nor did EPA factor in reductions from was taking account of CCAP. (OTAG) Region for Purposes of the Climate Challenge program, which As discussed below, after weighing all Reducing Regional Transport of Ozone, was initiated in 1994 as part of CCAP. the evidence in the record relevant to September 1998, at 182). Under Climate Challenge, utilities the claim that EPA double-counted In applying this approach to CCAP agreed to voluntarily reduce emissions CCAP demand reductions, EPA reductions, EPA did not factor in of CO2 through projects for, e.g., concludes that no such double-counting reductions from either the Green Lights improving electricity generation or Program or the Energy Star-Products transmission efficiency. Because 11 A commenter questioned the accuracy of the projections of reductions attributable to the Office Equipment Program, which Climate Challenge was specifically programs on the spreadsheet because those existed before CCAP and that were directed towards utilities, EPA assumed projections were done a program-by-program basis, simply put under the umbrella of CCAP that the utilities submitting their without consideration of the interactive effects of when CCAP was established in 1993. demand estimates to NERC would be the programs. The IDEAS model run, noted above, in effect considered those interactive effects on the Green Lights was one of EPA’s earliest familiar with the program and would be programs and provided as an output the total voluntary energy efficiency programs more likely to have taken demand electricity savings expressed in billion Kwh (along and was aimed at encouraging the use reductions from that program into with other outputs, including the emissions of energy efficient lighting products. account. In any event, the Climate reductions). The total electricity savings indicated by the IDEAS model run are virtually identical to This program was expanded under Action Report workgroup did not assign the total amounts projected on a program-by- CCAP. Similarly, the Energy Star a specific amount of reductions to this program basis. (Docket #A–96–56, XIV–F–03). Products program included a pre-1993 program.
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All told, EPA assumed that CCAP resulting in double-counting. The are likely to have included in their programs would result in 389 billion commenting utility group noted that reports to NERC would have been the Kwh in reductions by 2010 and further some utilities participated in two CCAP few older programs or those primarily assumed that an additional 113.5 billion programs (i.e., WasteWise and Motor targeting utilities, and not the many Kwh from CCAP programs and their Challenge) and speculated that the other CCAP programs. Indeed, while a pre-1993 predecessors, or 22.6% of the participating utilities ‘‘would have’’ commenting group of utilities total, had already been included in the included CCAP reductions in speculated that utilities must have taken NERC estimates. Thus, it is evident that developing the information provided for CCAP into account in submitting their EPA conservatively assumed that NERC the NERC forecasts. electricity demand information to NERC took into account demand reductions However, utilities comprise only a in 1997, EPA did not receive any direct from some CCAP programs, even though small number of companies evidence from the utilities that made the NERC’s documentation did not indicate participating in WasteWise and Motor submissions stating (much less that any CCAP reductions were taken Challenge. In 1996, WasteWise involved demonstrating) that their submissions into account and no utility commenter over 600 partners, representing over 30 actually took into account any specific provided documentation that the industries, including some utilities. CCAP programs or otherwise reflected demand forecasts they submitted to (Docket # A–96–56, Item # X–V–C–24, any specific demand reductions.14 NERC assumed any CCAP reductions.12 Wastewise, Third Year Progress Report, Particularly, in light of the silence of the On the other hand, EPA did factor USEPA, November, 1997, at p.2.) Motor individual utilities about what CCAP into the electricity demand projections Challenge is aimed primarily at reductions they actually included (as the reductions from the CCAP programs industrial end-users, not utilities, (60 FR distinguished from speculation about initiated in 1993 or later that were 61443–47, Nov. 29, 1995). Thus, the what they would have included), EPA aimed at a broader group of potential commenter’s evidence that a few maintains that its assumptions about participants than only utilities. Some of utilities were among the many what CCAP reductions were included the largest of these programs included participants in these two programs are reasonable. (i) WasteWise (a voluntary program provides a very weak basis for In addition, the argument that utilities designed to reduce municipal waste speculating that the NERC forecasts accounted for all CCAP reductions is through waste prevention and included CCAP demand reductions undercut by utilities’ comments in the recycling); (ii) Motor Challenge (a factored in by EPA. Similarly, many NOX SIP Call proceeding. Several program designed to help industry other CCAP programs, including the utilities commented that because CCAP realize electricity savings by providing Rebuild America and Energy Star reductions are voluntary, such industry with the technical expertise Buildings programs, were generally reductions should not be considered concerning management of electric directed at entities other than utilities. when making future demand motor systems and purchase of more Moreover, except for Climate assumptions. Given this view of the energy efficient electric motors); (iii) Challenge, the CCAP programs are CCAP reductions, it seems doubtful that Rebuild America (a program designed to designed to achieve electricity demand these utilities would have considered, encourage partnerships of various types reductions from a wide range of in their demand forecasts submitted to of companies and organizations— electricity end-users (i.e., residential, NERC, the CCAP reductions factored in ranging from builders to local commercial, and industrial end-users) by EPA. Moreover, an analysis, included governments—to retrofit existing public and were relatively new—only a few in comments by the utility group on years old when the utilities reported housing as well as commercial and whether the NOX SIP Call would have their 1997 demand estimates to NERC. multifamily buildings to be more energy an impact on the reliability of the The interagency workgroup had efficient); (iv) Energy Star Buildings (a region’s electricity supply in meeting estimated amounts of demand program designed to encourage electricity demand, did not take into reductions from these programs on a individual building owners, developers, account any demand reductions under national basis, but had not broken those and others to make comprehensive, CCAP (Responses to Significant estimates down to the NERC region energy-efficient building upgrades); and Comments on the Proposed Finding of level that was the basis for individual (v) Residential Appliance Standards (a Significant Contribution and utilities’ reports to NERC. Accordingly, program under which DOE would Rulemaking for Certain States in the it appears that the individual utilities Ozone Transport Assessment Group establish by rulemaking standards for would have had relatively little improved energy-efficient appliances (OTAG) Region for Purposes of experience in analyzing the extent to Reducing Regional Transport of Ozone, such as room air conditioners, which their particular customers refrigerators, water heaters, and others). September 1998, at 181–82; see also followed the CCAP programs and would Docket # A–96–56, Item # V–J–66, (Docket # A–96–56, Item # XIV–F–01; not have had any other source of Climate Action Report, Appendix A). UARG briefing entitled ‘‘The Impact of information for quantifying the CCAP EPA’s Regional SIP Call on the Because such programs were relatively demand reductions in their respective new and were geared primarily to Reliability of the Electric Power Supply regions.13 in the Eastern United States,’’ companies other than utilities, it is less For these reasons, it seems reasonable likely that utilities would have included September 11, 1998.) to conclude that as of 1997, the only Finally, one utility commenter stated demand reductions from these programs CCAP program reductions that utilities that NERC’s forecasts were unlikely to in their electricity demand projections. consider CCAP demand reductions. The A commenting group of utilities 13 For example, the Residential Appliance commenter explained: argued that the NERC forecasts likely Program depended on a series of DOE regulations already included the CCAP reductions establishing standards for numerous appliances. By 14 that EPA used to adjust those forecasts, 1997, DOE had not yet promulgated the first of Indeed, several commenters critical of EPA’s these regulations. As of 1997, the DOE program electricity demand assumptions nevertheless manager would nevertheless be in a position to acknowledged that it is unclear to what extent 12 Many other CCAP programs generated energy estimate the impact of this program on a national individual utilities incorporated CCAP programs savings but in ways other than reducing electricity level for future years, but individual utilities into their demand projections. (Docket # A–96–56, demand, so that EPA did not take into account estimating electricity demand in their areas would Item # XIV–D–14, Michigan, Attachment, p. 5, and benefits from these programs either. not be in a position to do so. Item # XIV–D–31, UARG, Attachment H, p. 7).
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NERC’s reliability planning mission programs by 282.5 billion KWh (Docket baseline’’ or ‘‘reference case’’ on which suggests just the opposite. NERC projections # A–96–56, Item # XIV–F–01). EIA, EIA based its electricity demand of future demand growth are used to however, reduced projected electricity forecasts. By comparison, the State determine how much capacity is needed to demand in 2010 from these programs by Department analysis projected that meet demand to ensure electric system industrial CCAP programs would reliability. The projections are a compilation much less. In explaining its analysis of of individual utility projections sent to each the impact of CCAP residential and generate reductions of 96.4 billion Kwh of the NERC regional councils to ensure commercial programs, EIA stated: (counting an adjustment from programs adequate supply exists to meet demand in Other CCAP programs which could have a categorized as commercial) (Docket # A– each region. The projections must be major impact on residential energy 96–56, Item # XIV–F–01). Thus, EIA conservative and err on the side of consumption are the Environmental projected that these industrial programs overstating demand to avoid supply Protection Agency’s (EPA) Green Programs. would generate savings of less than one- shortfalls—it is of little consequence if NERC These programs which are cooperative efforts tenth the amount that EPA did. overestimates demand, but of potentially between the EPA and home builders and As discussed above, EPA’s more great consequence if it underestimates it. For energy appliance manufacturers encourage aggressive assumptions were taken from this reason, although the compiled nature of the development and production of highly the supporting analysis for the State NERC’s forecasts makes it virtually energy-efficient housing and equipment. At Department’s Climate Action Report, impossible to assess its underlying fully funded levels, residential CCAP assumptions, it is reasonable to assume programs are estimated by program sponsors which included reduction estimates that NERC projections largely ignore new, to reduce carbon emissions by approximately were developed through interagency uncertain electricity demand dampening 28 million metric tons by the year 2010. For consultation and were subject to public impacts, such as voluntary programs with no the reference case, carbon reductions are comment. EPA believes it was clear track record of affecting electricity estimated to be 8 million metric tons, appropriate to use them. consumption. (See Docket # A–96–56, Item # primarily because of differences in the Some commenters suggest that EPA XIV–E–01, Letter from Mark Brownstein, estimated penetration of energy-saving should assess whether the CCAP Public Service Electric & Gas, Sept. 15, 2001, technologies. * * * demand reductions are still justified at p. 8) At fully funded levels, commercial CCAP based on any new information that has programs are estimated by program sponsors (ii) EIA Forecasts to reduce carbon emissions by approximately become available since EPA issued the Section 126 Rule and the Technical Several commenters pointed out that 25 million metric tons by the year 2010. For Amendments. EPA believes that it is NERC’s electricity demand forecast the reference case, carbon reductions are appropriate for the Agency to rely on (1.8% demand growth per year) and estimated to be just over 9 million metric tons in 2010, primarily because of differences the information that was available EIA’s electricity demand forecast (1.7% in estimated penetration of energy-saving during the rulemakings that resulted in demand growth per year) are similar technologies. those rules. However, EPA notes that and higher than EPA’s forecast. commenters did not provide any Emphasizing that EIA explicitly took (Annual Energy Outlook 1998 (AEO98), specific information showing that EPA’s CCAP reductions into account, Energy Information Administration, projected CCAP demand reductions commenters suggested that the EIA December 1997 at 209–10). were incorrect.15 forecast factored in the proper amount In other words, EIA believed that Further, new, current of CCAP demand reductions and that CCAP residential and commercial information provides some confirmation the similarity of the EIA and NERC programs would be about one-third as that EPA’s projected CCAP demand forecasts therefore shows that the NERC effective at reducing energy use reductions were reasonable. A recent forecasts already properly factored in (including electricity use) as the State report, (Docket # A–96–56, Item # XV– such demand reductions. Department and EPA and other sponsors C–25, The Power of Partnerships Energy However, EIA’s explanation, in the projected and included the lower Star and Other Voluntary Programs— Annual Energy Outlook for 1998, of its estimate of the energy use reductions in 2000 Annual Report, EPA , 2001 at p. electricity demand forecast indicated the ‘‘reference case’’ on which EIA 6) states that the Energy Star Program, that while EPA factored into its based its electricity demand forecasts. which promotes highly efficient EIA similarly assumed much fewer forecasts all the CCAP demand equipment such as energy efficient energy savings from CCAP industrial reductions projected by the State refrigerators, dish washers, and programs than EPA believed based on Department’s Climate Action Report, windows, has exceeded the level the Climate Action Report. As EIA described above, EIA factored into its forecasted by CCAP for 2000 by more explained: than 20 percent of the forecasted level forecasts only a small portion of those 16 reductions. This different treatment of For their annual update, the program in the CCAP. Furthermore, EPA has CCAP reductions explains much of the offices estimated that full implementation of expanded CCAP to cover other uses of difference in demand reductions these programs would reduce industrial electricity (e.g., at hospitals) that will electricity consumption by 20 billion increase savings further. (See Docket # between EIA and EPA. kilowatt hours * * * However since the The Climate Action Report organizes A–96–56, Item # XV–C–26, EPA energy savings associated with the voluntary Administrator Launches New Energy virtually all of the CCAP programs that programs are, to a large extent, already affect electricity demand into three contained in the AEO98 baseline total CCAP 15 A commenter stated that CCAP has not categories: residential, commercial, and energy savings were reduced. Consequently, generated the expected level of reductions because industrial, (Climate Action Report, CCAP is assumed to reduce electricity it did not achieve its goal of reducing U.S. Table 1–2). The report indicates that the consumption by 9 billion kilowatt hours. Id. greenhouse gas emissions to 1990 levels. However, residential and commercial programs at 210. the amounts of reductions projected by the Climate Action Report for particular CCAP programs were expected to generate reductions of EIA essentially assumed that CCAP affecting electricity demand, which are the ones carbon emissions totaling 53 million industrial programs resulted in relevant for present purposes, were far less than metric tons by 2010. Id. Not including relatively few additional energy saving would be necessary to reduce overall U.S. the reductions from programs that EPA activities beyond those activities that greenhouse gas emissions to 1990 levels. 16 Only a small part of the Energy Star reductions assumed were included in the NERC industrial companies were already were considered to be included in the NERC estimates, EPA reduced projected carrying out and that were therefore forecasts because they involved programs in electricity demand in 2010 due to these already reflected in the ‘‘AEO98 existence before 1993.
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Star Rating Tool for Hospitals, Honors areas that have different environmental It should also be noted that, while First Hospital to Earn Energy Star Label, requirements. These regions and coal-fired and nuclear units make up November 15, 2001.) subregions do not correspond to State about 77% of existing electricity In short, commenters failed to show boundaries, in many cases. For example, generation capacity (with gas- and oil- that the EIA electricity demand forecast part of Illinois and part of Missouri is fired units making up 13% and properly factored in the CCAP demand split between two NERC Regions, the hydroelectric and renewal facilities reductions, much less that the NERC East Central Reliability Area Council making up the rest), the only new units forecast (which was higher than the EIA (ECAR) and the Mid America projected by the IPM in the runs for the forecast) already included the CCAP Interconnected Network. Similarly, NOX SIP Call (and applicable to the demand reductions that EPA used to Virginia and Kentucky are split between Section 126 Rule) were gas-fired units. reduce the NERC forecast. ECAR and the Southern Electric Because new gas-fired units will likely (iii) Consistency With Regional Heat Reliability Council (SERC). While have very high levels of NOX control Input Alabama and Georgia are both located and much lower NOX emissions as entirely within the SERC Region, in IPM compared to existing units (see Finally, EPA notes that ‘‘the they have been further subdivided into discussion of new units’ low NOX electricity demand reductions [under multiple IPM subregions to more closely emissions in section V.D.8 of this CCAP] were distributed evenly match the constraints within the electric notice), these units will have a much throughout the United States, and distribution system. The IPM runs smaller impact on NOX emissions than therefore have no influence on the share indicated which new units would do existing units. Therefore, even if of the total amount of NOX emissions operate in which subregions but did not some new units locate in different States that each State receives,’’ (63 FR 57414). specify in which States in these than those projected by the IPM, those Any overestimation of the CCAP subregions. In order to develop State units will not significantly increase the demand reductions would therefore be budgets, EPA had to develop a NO emissions in the States where they likely to result in regionwide X methodology to disaggregate these new locate and so will not significantly projections of heat input being lower units from the subregional level to the increase the stringency of the NO than actual levels, rather than in only a X State level. emission reduction requirements for few States’ projections being lower than Under EPA’s methodology, new units other units in such States. In actual levels. Yet, as explained below, that had commenced construction or conclusion, EPA believes that its heat EPA’s heat input projections have been received financing, at the time that the input growth rate methodology— reasonably accurate on a regionwide model was updated (i.e., in 1998) for including the challenged assumptions basis. EPA’s projections were 0.1% use in the NOX SIP Call and the Section on new unit location, electricity lower than actual regionwide heat input 126 Rule, were included in the State in demand, and representativeness of the for 2000 and 2% higher than actual which they existed or were planned. regionwide heat input for 2001. This 2001–2007 heat input growth rates—is Second, new units that had not reasonable. indicates that the CCAP assumptions commenced construction or received were reasonable and did not lead to financing at that time, but that were D. Actual Heat Input Compared to EPA ‘‘stark disparities between [EPA’s] projected by the IPM to be built were Projections of Heat Input projections and real world assigned to an individual State based on 1. Court’s and Commenters’ Concerns observations.’’ Appalachian Power v. the share of the subregion’s generation EPA, 249 F.3d 1054.17 capacity (both fossil and non-fossil) that The Court expressed concern about was located in the State. EPA maintains the perceived discrepancies between 5. EPA’s Assumptions Regarding the EPA’s heat input projections and actual Location of New Units Were Reasonable that this was a reasonable approach that took into account the then most current, heat input data. The Court stated: ‘‘In Commenters on EPA’s August 3, 2001 available information on new unit Michigan and West Virginia, for NODA expressed concern about the construction and financing. example, actual utilization in 1998 methodology that EPA used to assign EPA also notes that the only already exceeded the EPA’s projected new units to individual States.18 The alternative approach suggested by levels for 2007. This, on its face, raises IPM divided the country into geographic commenters was to use new information questions about the reliability of the regions that are based on NERC regions. on the commencement of construction EPA’s projections.’’ (Appalachian Power These regions are further subdivided to and financing of new units. To the v. EPA, 249 F.3d at 1053). The Court account for transmission bottlenecks or extent that this type of information was added that ‘‘[f]urther growth projections available at the time that EPA updated that implicitly assume a baseline of 17 EPA also notes that the Agency’s use of the IPM (i.e., in 1997) for use in the NO X negative growth in electricity generation assumed CCAP reductions did not significantly SIP Call and the Section 126 Rule, EPA over the course of a decade appear affect the cost effectiveness of the NOX emissions reductions on which the State NOX emission did use such information. However, arbitrary, and the EPA can point to budgets are based and did not change whether the EPA rejects the approach of now using nothing in the record to dispel this reductions met EPA’s cost effectiveness criteria. As new information of this type, for units appearance.’’ Id. explained in the NOX SIP Call, EPA examined the Commenters expressed similar impact of the CCAP reductions and found that that have been more recently built or are ‘‘even if the Agency did not assume the CCAP currently being built, that was not concerns. Through the August 13, 2001 reductions, it was still highly cost effective to available when the IPM was updated. NODA, EPA put in the docket data develop a regional level NOX budget for the electric EPA believes that it reasonably relied on indicating ozone season heat input for power industry, based on the level of control that the most current information available each State in the NOX SIP Call region for EPA has assumed,’’ (63 FR 57414). (See also the years 1997–2000. Commenters Regulatory Impact Analysis for the Regional NOX around the time the IPM was updated SIP Call, at 6–24 and 6–25, September 1998). and that it would not be reasonable to pointed out that this data indicated that 18 This issue, like the CCAP issues, was raised by require the Agency to redo its analysis in 2000, actual heat input for four other commenters for the first time in response to the whenever, as inevitably occurs, more States—Alabama, Georgia, Illinois, and August 3, 2001 NODA and was not raised in any earlier rulemaking or before the Court. recent information becomes available. Missouri—exceeded EPA’s projected Nevertheless, EPA is addressing all these issues on Imposing such a requirement would be heat input for the year 2007. the merits in today’s notice. a prescription for endless rulemaking. Commenters claimed that this showed
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that EPA’s heat input growth rates and According to the commenters, in raised concerns that the heat input projections were unreasonable. Through subsequent years, EPA’s regionwide growth rates for five other States the March 11, 2002 NODA, EPA put in projection would diverge significantly (Alabama, Georgia, Illinois, Missouri, the docket comparable data for the year from actual regionwide heat input. and Virginia) were too low because, for 2001 and, subsequently, put in annual The actual heat input values for 2001 each State, the actual heat input in 2000 data for each State for 1960–2000. (See became available after the submission of exceeded or were close to EPA’s 2007 Docket # A–96–56, Item #’s XV–C–18 comments on the August 3, 2001 NODA projection. For the remaining 15 and XV–C–19). and were put in the docket. As noted jurisdictions in the NO SIP Call region, above, the regionwide, actual heat input X After careful review of these and other EPA’s heat input growth rates and for 2001 remains quite close to, and in data in the record and the Court’s and projections were not disputed by any commenters’ concerns, EPA concludes fact is a little lower than, the EPA’s petitioner and are not disputed in any that the available, actual heat input does regionwide heat input projection for comments on the August 3, 2001 and not indicate that the Agency’s heat 2001. Of course, regionwide electricity input growth methodology is demand, and so regionwide heat input, March 11, 2002 NODA’s or on any other unreasonable. in the 2001 ozone season were probably documents added to the docket somewhat lower than they otherwise concerning the remand on growth rates. 2. EPA’s Heat Input Projections for the would have been because of the unusual The fact that no objections have been Region Are Consistent With Actual Heat reduction in economic activity raised with respect to the majority of the Input Data immediately after the September 11, States is an indication of the EPA’s heat input projections for EGUs 2001 terrorist attacks. Even so, reasonableness of EPA’s heat input for the NOX SIP Call region (21 States regionwide electricity demand still grew growth methodology. Further, as and the District of Columbia), taken as slightly over 2000 ozone season levels. discussed below, all of the States about a whole, are consistent with the actual (Docket #A–96–56, Item # XV–C–12, which the Court or commenters summarizing EIA electricity sales data heat input data that are available. EPA expressed concern have recently had for the ozone season for the NO SIP projected heat input for 2007 by X decreases in their heat input, in some applying State heat input growth rates Call States during 1995–2001). With the cases to levels below EPA’s 2007 to 1995 or 1996 baseline heat input. continued closeness of EPA’s projected projections. Also as discussed below, Although 2007 is the only year for and the actual values for regionwide which EPA was projecting heat input heat input, it is difficult to give the because in a number of instances State annual heat input has decreased and for which EPA established NOX commenters’ assertion of ‘‘pure emission budgets for EGUs, the EPA coincidence’’ much credence. Moreover, significantly over multi-year periods, methodology can be applied to yield as discussed above, EPA’s methodology the fact that a State has recently had heat input values for other years, such for developing heat input growth rates, heat input exceeding or close to EPA’s as 2000 and 2001. When compared with and the assumptions underlying the 2007 projections does not mean that the actual heat input data now available for methodology, are reasonable, and so it projection is unreasonable. 2000 and 2001, EPA projections for is logical to expect that the heat input projections resulting from that 4. Historical Data Show That a State’s those years are consistent with the Heat Input Can Decrease Significantly actual data. methodology are reasonable. Over Multi-Year Periods Specifically, EPA’s projections for 3. EPA’s Heat Input Growth Rates and total regionwide heat input for EGUs are 2007 Projections for Most States Are Not As noted above, the Court indicated 6,250,350,678 mmBtu for 2000 and Disputed by Commenters significant doubt that a State’s heat 6,328,056,922 mmBtu for 2001.19 These EPA’s heat input growth rates and input could decrease over a long period projections are 0.1% lower and 2% of years. The Court seemed to be higher respectively than actual 2007 projections for most States in the NOX SIP Call region, and for most States concerned that underlying a decrease in regionwide heat input for EGUs for 2000 State heat input would have to be a and for 2001 (see Table 1). covered by the Section 126 Rule, are not decrease in electricity generation. In commenting on the data presented specifically disputed by commenters. Of by the August 3, 2001 NODA, which the 21 States and the District of Consequently, the Court questioned the included the actual heat input values for Columbia covered by the NOX SIP Call, reasonableness of EPA’s heat input years up to 2000, commenters stated or recently proposed to be covered, the growth rate methodology because the that the closeness of the regionwide heat input growth rates and 2007 methodology resulted in a State projection for 2000 and actual projections for only seven States exceeding its 2007 level nine years in regionwide heat input did not cast (Alabama, Georgia, Illinois, Michigan, advance. However, historical heat input doubt on their view that EPA’s heat Missouri, Virginia, and West Virginia) data shows that, on many occasions, input growth methodology provided are disputed by commenters. Of the 12 State annual and ozone season heat unreasonably low growth rates. Rather, States and the District of Columbia input has decreased significantly for the commenters asserted, the closeness was covered by the Section 126 Rule, these last year, as compared to the first year, ‘‘pure coincidence’’ resulting from EPA values for only three States (Michigan, of multi-year periods. using an inflated 1995–1996 baseline Virginia, and West Virginia) are disputed by commenters. Table 1 below shows the ozone season and applying to it a ‘‘less-than- heat input for EGUs for 1995–2001 for reasonable’’ heat input growth rate. As noted above, petitioners and the Court raised concerns about EPA’s each State in the NOX SIP Call region. For each ozone season, EPA summed 19 As noted in the August 3, 2001 NODA, EPA’s growth rates and projections for methodology called for projecting 2007 heat input, Michigan and West Virginia, stating that the heat input data for Acid Rain not heat input at interim points in time. However, EPA’s State heat input growth rates Program units, as reported to EPA under for purposes of responding to concerns about the resulted in State projections for 2007 40 CFR part 75, and for other EGUs, as reasonableness of the methodology, it is useful to examine what the methodology would project if below the 1998 actual heat input values. reported to EIA. applied to interim points in time when data Subsequently, in comments on the BILLING CODE 6560–50–P concerning actual heat input are available. August 3, 2001 NODA, commenters
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BILLING CODE 6560–50–C
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This ozone season data shows as compared to the first year, of multi- TABLE 4.—LARGEST DECREASES IN decreases in State heat input for several year periods) that the listed States have STATE ANNUAL HEAT INPUT OVER States for the last year, as compared to had in annual heat input over 3-year, 4- FIVE YEARS the first year, of multi-year periods of 3 year, 5-year, 6-year, 7-year, 8-year, 9- to 6 years.20 For example, during 1995 year and 10-year periods respectively. % decrease through 2001, Delaware, Georgia, State 5-year in heat period input Illinois, Indiana, Massachusetts, TABLE 2.—LARGEST DECREASES IN Maryland, Michigan, North Carolina, STATE ANNUAL HEAT INPUT OVER Ohio, Pennsylvania, Virginia, and West Alabama ...... 1977—1982 15 THREE YEARS Connecticut ...... 1989—1994 55 Virginia had decreases in heat input for Delaware ...... 1993—1998 28 the last year, as compared to the first % decrease Georgia ...... 1987—1992 14 year, of the 3-year period 1998–2001. 3-year Illinois ...... 1983—1988 23 State period in heat Heat input decreases for other multi- input Indiana ...... None None year periods occurred during 1995 Kentucky ...... 1995—2000 2 through 2001 for Delaware (6-year Alabama ...... 1979—1982 17 Massachusetts .. 1989—1994 35 period 1995–2001), North Carolina (5- Connecticut ...... 1989—1992 6 Maryland ...... 1976—1981 24 year period 1996–2001), New Jersey (3- Delaware ...... 1995—1998 24 Michigan ...... 1978—1983 17 year period 1995–1998), New York (6- Georgia ...... 1989—1992 9 Missouri ...... 1988—1993 13 New Jersey ...... 1989—1994 44 year period 1995–2001), Pennsylvania Illinois ...... 1986—1989 17 Indiana ...... 1979—1982 3 New York ...... 1989—1994 40 (6-year period 1995–2001) Rhode Island North Carolina .. 1982—1987 25 Kentucky ...... 1997—2000 8 (4-year period 1996–2000), and Ohio ...... 1979—1984 11 Tennessee (6-year period 1995–2001). Massachusetts .. 1997—2000 42 Pennsylvania .... 1980—1985 13 EPA also examined long-term, fossil Maryland ...... 1978—1981 26 Rhode Island .... 1988—1993 90 fuel use data. The long-term data from Michigan ...... 1979—1982 19 South Carolina .. 1981—1986 14 EIA show fossil fuel use (in mmBtu) on Missouri ...... 1990—1993 12 Tennessee ...... 1977—1982 23 an annual, not an ozone season, basis New Jersey ...... 1989—1992 46 Virginia ...... 1977—1982 38 New York ...... 1990—1993 34 West Virginia .... 1988—1993 12 for the 21 States subject to the NOX SIP Call for 1960–2000.21 (Because of the North Carolina .. 1981—1984 17 Ohio ...... 1979—1982 11 large amount of data, the full set of ABLE ARGEST ECREASES IN Pennsylvania .... 1996—1999 14 T 5.—L D 1960–2000 annual data is provided in STATE ANNUAL HEAT INPUT OVER Docket #A–96–56, Item #XV–C–18, Rhode Island .... 1990—1993 88 SIX YEARS rather than being included in today’s South Carolina .. 1981—1984 19 Tennessee ...... 1979—1982 16 notice.) These data demonstrate that % decrease decreases in State annual heat input, Virginia ...... 1979—1982 35 6-year State period in heat like decreases in State ozone season West Virginia .... 1988—1991 13 input heat input, are not unusual. Alabama ...... 1976—1982 11 Specifically, the 1960–2000 annual TABLE 3.—LARGEST DECREASES IN heat input data show significant Connecticut ...... 1989—1994 52 STATE ANNUAL HEAT INPUT OVER Delaware ...... 1993—1999 28 decreases in State annual heat input for FOUR YEARS Georgia ...... 1985—1991 14 the last year, as compared to the first Illinois ...... 1983—1989 25 year, of multi-year periods of 3 to 10 % decrease Indiana ...... None None years (or longer). In fact, all but one of 4-year Kentucky ...... 1993—1999 2 State period in heat the 21 States under the NOX SIP Call input Massachusetts .. 1989—1995 37 has had significant decreases in annual Maryland ...... 1974—1980 27 heat input over many multi-year periods Alabama ...... 1980—1984 9 Michigan ...... 1976—1982 13 ranging from 3 to 10 years; one of the Connecticut ...... 1989—1993 55 Missouri ...... 1987—1993 9 States (Indiana) has had such decreases Delaware ...... 1996—2000 25 New Jersey ...... 1989—1995 45 New York ...... 1990—1996 44 over multi-year periods, within that Georgia ...... 1988—1992 12 Illinois ...... 1984—1988 18 North Carolina .. 1981—1987 29 range, of only 3-years. Tables 2, 3, 4, 5, Ohio ...... 1977—1983 8 Indiana ...... None None 6, 7 ,8, and 9 summarize this Pennsylvania .... 1980—1986 15 information by showing the largest Kentucky ...... 1996—2000 5 Rhode Island .... 1987—1993 91 percentage decreases (for the last year, Massachusetts .. 1989—1993 34 South Carolina .. 1977—1983 11 Maryland ...... 1978—1982 23 Tennessee ...... 1976—1982 24 20 EPA, of course, recognizes that there also can Michigan ...... 1979—1983 19 Virginia ...... 1977—1983 38 be significant increases in State heat input over Missouri ...... 1989—1993 13 West Virginia .... 1985—1991 11 multi-year periods. However, commenters New Jersey ...... 1989—1993 48 suggested that significant decreases could not New York ...... 1990—1994 37 occur. The point is that, since significant decreases TABLE 6.—LARGEST DECREASES IN can occur, the fact that State’s recent heat input North Carolina .. 1983—1987 48 exceeds or is close to EPA’s 2007 projection does Ohio ...... 1979—1983 12 STATE ANNUAL HEAT INPUT OVER not make the projection unreasonable. Pennsylvania .... 1980—1984 14 SEVEN YEARS 21 EIA collected, on a long term historical basis, Rhode Island .... 1989—1983 86 monthly and annual plant-by-plant data on South Carolina .. 1980—1984 15 % decrease quarterly and heat content of fuel used. EIA used 7-year Tennessee ...... 1978—1982 24 State in heat these data to determine annual heat input for each period input State and did not determine State heat input on an Virginia ...... 1979—1983 35 ozone season basis. EPA notes that its analysis does West Virginia .... 1989—1993 14 Alabama ...... 1975—1982 8 not include the District of Columbia, for which a Connecticut ...... 1986—1993 53 full set of historical, annual heat input data was not available. However, the heat input growth rate for Delaware ...... 1993—2000 31 the District of Columbia is not disputed by Georgia ...... 1985—1992 17 commenters. Illinois ...... 1981—1988 22
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TABLE 6.—LARGEST DECREASES IN TABLE 8.—LARGEST DECREASES IN derived long-term State ozone season STATE ANNUAL HEAT INPUT OVER STATE ANNUAL HEAT INPUT OVER heat input data. However, EPA believes SEVEN YEARS—Continued NINE YEARS—Continued that the latter data confirm EPA’s annual-data analysis because the long- % decrease % decrease term ozone season data show multi-year 7-year State 9-year in heat State period in heat period decreases in State heat input that are input input very similar in length and magnitude to those shown by the long-term State Indiana ...... None None Missouri ...... 1984–1993 20 annual heat input data. Id. New Jersey ...... 1984–1993 54 Kentucky ...... 1993—2000 1 In summary, historical data show that Massachusetts .. 1989—1996 40 New York ...... 1987–1996 35 Maryland ...... 1974—1981 37 North Carolina .. 1981–1990 26 heat input (whether for the ozone Michigan ...... 1975—1982 15 Ohio ...... 1979–1988 2 season or the entire year) in individual Missouri ...... 1984—1991 7 Pennsylvania .... 1990–1999 14 States is quite variable and has New Jersey ...... 1989—1996 54 Rhode Island .... 1984–1993 88 decreased significantly over multi-year New York ...... 1989—1996 47 South Carolina .. None None periods on a number of occasions. EPA North Carolina .. 1981—1988 27 Tennessee ...... 1973–1982 18 respectfully submits that the data Ohio ...... 1977—1984 7 Virginia ...... 1974–1983 35 provide a basis for the Court to Pennsylvania .... 1980—1987 14 West Virginia .... 1984–1993 9 reconsider its concern that the fact that Rhode Island .... 1986—1993 89 heat input values for some States for South Carolina .. 1977—1984 6 certain years have already exceeded Tennessee ...... 1976—1983 15 TABLE 9.—LARGEST DECREASES IN Virginia ...... 1976—1983 38 STATE ANNUAL HEAT INPUT OVER EPA’s 2007 heat input projections West Virginia .... 1984—1991 10 TEN YEARS supports objections to the reasonableness of EPA’s heat input % decrease growth methodology. TABLE 7.—LARGEST DECREASES IN 10-year State period in heat 5. Approach of Using Recent State Heat STATE ANNUAL HEAT INPUT OVER input Input To Project Future State Heat Input EIGHT YEARS Alabama ...... 1973–1983 9 Is Not Statistically Sound Connecticut ...... 1983–1993 48 % decrease Commenters claimed that, because the State 8-year in heat Delaware ...... 1988–1998 31 recent heat input for seven States period input Georgia ...... None None Illinois ...... 1979–1989 32 (Alabama, Georgia, Illinois, Michigan, Missouri, Virginia, and West Virginia) Alabama ...... 1974–1982 12 Indiana ...... None None Connecticut ...... 1986–1994 52 Kentucky ...... None None has exceeded or been close to EPA’s Delaware ...... 1991–1999 29 Massachusetts .. 1990–2000 48 2007 heat input projections, EPA’s Georgia ...... 1984–1992 11 Maryland ...... 1972–1982 28 projections are unreasonable. In making Illinois ...... 1980–1988 28 Michigan ...... 1973–1983 11 this claim, commenters implicitly Indiana ...... None None Missouri ...... 1983–1993 16 assumed that future heat input can Kentucky ...... None None New Jersey ...... 1983–1993 55 reasonably be projected using a Massachusetts .. 1992–2000 41 New York ...... 1989–1999 31 relatively short period of years of actual Maryland ...... 1974–1982 35 North Carolina .. 1980–1990 23 State heat input data. Ohio ...... None None Michigan ...... 1974–1982 13 In order to test the validity of this Missouri ...... 1984–1992 11 Pennsylvania .... 1989–1999 21 Rhode Island .... 1983–1993 88 assumption, EPA simulated that New Jersey ...... 1984–1992 53 approach using historical annual heat New York ...... 1988–1996 42 South Carolina .. 1973–1983 6 North Carolina .. 1980–1988 24 Tennessee ...... 1973–1983 8 input data for the 21 NOX SIP Call Ohio ...... 1976–1984 5 Virginia ...... 1972–1982 36 States for 1960–2000 (or in some States Pennsylvania .... 1991–1999 12 West Virginia .... 1981–1991 6 where less data was available, from Rhode Island .... 1985–1993 88 1970–2000). Using this data, EPA used South Carolina .. 1978–1986 2 Although the longer term EIA annual 6 years worth of historical data (e.g., Tennessee ...... 1976–1984 13 heat input data and EPA’s shorter term 1960–1966) to project annual heat input Virginia ...... 1977–1985 36 ozone season data show the same types for the sixth year after the 6-year period West Virginia .... 1985–1993 11 of multi-year period decreases, EPA (e.g, 1972). EPA did this on a rolling conducted further analysis in order to basis, using historical 6-year periods TABLE 8.—LARGEST DECREASES IN confirm that ozone season and annual from 1960 to 1994 (or 1970 to 1994), to State heat input have similar project annual heat input for the years STATE ANNUAL HEAT INPUT OVER fluctuations. Specifically, EPA used EIA 1972 (or 1982) to 2000. EPA tested how NINE YEARS monthly data on fuel quantity (which well the historical data predicted future was available for years starting with % decrease annual heat input value by comparing State 9-year in heat 1970) and generic heat content factors in the projected value with the actual period input order to derive estimated ozone season value for the same year. Specifically, heat input data for 1970–1998. [See EPA performed an r-squared test on the Alabama ...... 1973–1982 17 Docket # A–96–56, Item # XV–C–19 actual annual heat input vs. the Connecticut ...... 1984–1993 51 (explaining how EPA derived estimated projected annual heat input for the same Delaware ...... 1991–2000 33 ozone season data and providing that year. This test provides a measure of Georgia ...... 1984–1993 3 Illinois ...... 1990–1989 31 estimated data)]. Because of the nature how much a change in one variable Indiana ...... None None of the simplifying assumptions that EPA (here, actual annual heat input) is Kentucky ...... None None made in order to derive long-term ozone related to a change in a second variable Massachusetts .. 1991–2000 47 season data, EPA’s analysis in this (here, projected annual heat input). For Maryland ...... 1972–1981 31 notice relies primarily on the long-term instance, an r-squared value of 1 implies Michigan ...... 1974–1983 13 State annual heat input data, not the that all of the change in the first variable
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is related to change in the second value. generation in the State. Electricity Conversely, an r-squared value of 0 generation in a State can increase at the implies that none of the change in the Number of same time that heat input (i.e., fossil first variable is related to change in the projections fuel use) decreases in that State. One State off by Range of second variable. more than projections reason for this is that significant EPA found that, in testing the actual 10% amounts of electricity can be generated annual heat input data vs. the projected from non-fossil sources, such as nuclear West Vir- 21 of 29 ... ¥44.0% to units or hydro-electric facilities. annual heat input data for each State, 10 ginia. 37.9% Commenters suggested that heat input States (including Illinois, Michigan and will have to increase in the next several Virginia) out of the 21 NOX SIP Call In short, historical State heat input for years because nuclear power plants are States had r-squared values below 0.12. a relatively short period of years is not already operating at near capacity. This An additional six States (including a reliable method for predicting future may be generally correct on a Missouri and West Virginia) had r- State heat input. regionwide basis, and EPA projects squared values below 0.32. Because the 6. EPA’s Heat Input Projections Do Not increased regionwide heat input in r-squared test showed that less than 2007. However, this is not true on a one-third of the variability in projected Implicitly Assume Negative Growth in Electricity Generation State-by-State basis for all States. For annual heat input can be explained by example, in Illinois several nuclear the variability in actual annual heat In Appalachian Power v. EPA, 249 power plants recently received approval input for 16 of the NOX SIP Call States, F.3d at 1053, the Court expressed by the Nuclear Regulatory Commission EPA believes that it is clear that concern that, for States whose actual to increase their generation capacity. historical heat input cannot be used as heat input for EGUs already exceeded Four units (Dresden Units 2 and 3 and a reliable indicator of future heat input. EPA’s projections for 2007, EPA’s Quad Cities Units 1 and 2) plan to Moreover, the r-squared values for the projection ‘‘implicitly assume a baseline increase their capacity by 17 to 18% in remaining States were: Alabama, 0.63; of negative growth in electricity 2002 and 2003.22 Carrying out these Georgia 0.42; Indiana, 0.80; Kentucky, generation.’’ Although the Court plans will tend to reduce heat input, 0.67; New Jersey (0.59). Except for expressed concern about electricity while increasing electricity generation. Indiana, this indicates only a weak generation, it should be recalled that in Further, two units at the Cook Nuclear correlation between actual heat input the NOX SIP Call and Section 126 Rule, Plant in Michigan underwent an data and projected heat input data the regulatory requirements were extended, unexpected outage in 1998– because 33% to 58% of the variability computed with reference to heat input, 2000. The outage of the two units of projected heat input data cannot be and not electricity generation. tended to increase fossil fuel use, and explained by the variability in actual Accordingly, in expressing concern bringing them back online tended to heat input data. Even in Indiana where about electricity generation, the Court decrease fossil fuel use. An increase in the correlation was strongest, the apparently was concerned that a nuclear generation can reduce heat projections ranged from 13.4% below decrease in heat input would input without reducing total electricity the actual value to 10.9% above the necessarily mean a decrease in generation in a State. actual value. For Alabama, 15 of the 29 electricity generation and that a Heat input can also decrease, without projections were more than 10% above projection of a heat input decrease decreasing electricity generation, or below the actual value, and the would implicitly assume decreased because the efficiency of fossil-fuel fired projections ranged from 26.7% below electricity generation. electricity generating units can be the actual value to 27.9% above the In response, EPA respectfully submits increased, allowing generation of the actual value. (See Docket # A–96–56, that fossil-fuel use at the State level— same amount of electricity with use of Item #’s XV–C–19 and XV–C–20.) For which is at issue in the present case— less fossil fuel. One way this can occur other States, disparities between the is but one factor associated with is through replacement of existing projected values and the actual values electricity generation. Many other boilers, which are on average between were even wider. The variability in the factors affect electricity generation as 33% and 35% efficient at converting projections for the States where well. Accordingly, EPA respectfully fossil fuel to electricity, with combined concerns have been raised are submits that a decrease in State heat cycle turbines, which can be up to 60% summarized below. input (whether actual or projected) does efficient. For example, on February 25, not implicitly mean a decline in 2000, Illinois approved a permit for electricity generation. Ameren Corporation to replace two Indeed, State heat input can decrease coal-fired units at the Grand Tower while electricity generation in the State Number of Generating Station with two combined projections or in the region increase. There are at cycle gas turbines.23 Range of least two reasons why this can happen. State off by projections Efficiency can also be improved more than First, even within a State, heat input through modifications at existing 10% does not necessarily correlate with generation facilities. For example, electricity generation because of Alabama ..... 15 of 29 ... ¥26.7% to improvements can be made to the boiler 27.3% electricity generated using non-fossil that allow better transfer of heat from Georgia ...... 14 of 29 ... ¥50.9% to fuel sources and increased efficiency of the burning coal to the steam used to 37.0% fossil fuel generation. Second, because power the turbine-generators; the Illinois ...... 21 of 29 ... ¥46.4% to electricity is sold on a regionwide basis, 40.1% electricity generation can decrease in 22 See http://www.nrc.gov/reading-rm/doc- Michigan ..... 25 of 29 ... ¥33.4% to one State and increase in another State, collections/news/archive/01–136.html. 23 _ 54.6% with increased electricity being sold and See http://yosemite.epa.gov/r5/il permt.nsf/ ¥ 50d44ae9785337bf8625666c0063caf4/ Missouri ...... 23 of 29 ... 36.4% to used in the first State. b04c4b1ab67564e48625685d0068df82/$FILE/ 31.9% a. State heat input does not 99080101fnl.PDF; and http://www.dom.com/ Virginia ...... 25 of 29 ... ¥60.2% to 71% necessarily correlate with electricity operations/station-fossil/unit.html.
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efficiency of auxiliary equipment such to utilities or to end-users. The make it feasible to construct and run the as fans can be improved; the efficiency Changing Structure of the Electric Power model. Furthermore, the model uses of the turbine generators that convert Industry 2000: An Update, Energy inputs that are themselves projections the steam to electricity can be improved; Information Administration, October (e.g., electricity demand and fuel costs). and combustion optimization software, 2000 at pp. ix, xi, and 117. Significant Because of these simplifying which can reduce NOX emissions while amounts of new generating capacity assumptions and projected inputs, the increasing efficiency, can also be (about 82% of total capacity additions results from the IPM, like those from added.24 Greater efficiency, whether in 1998) have been built by non-utilities any model, may well differ from reality. from improvements to existing facilities in order to generate electricity for sale For example, the IPM assumes typical or from new units, can result in the in the regional electricity market. Id. at electricity demand each year, which same or more electricity generation in a xi. reflects typical conditions like typical State with less heat input. EPA notes weather and typical economic growth. 7. Even if There Were a Substantial Risk that the incentives for companies that The basis for assuming typical That EPA’s State Heat Input Projection generate electricity for sale to improve conditions is the assumption that Would Be Less Than a State’s Actual the efficiency of electricity generation periods of high or low demand or hot 2007 Heat Input, This Would Not Make has increased with deregulation of or cold weather tend to average out over EPA’s Projection Unreasonable electricity generation and increased time. In reality, of course, there are competition in the electricity market. For the reasons discussed above, years of unusually warm weather or b. Electricity is generated and sold on commenters failed to show that having unusually high economic growth, a regional, not on a State-by-State basis. recent State heat input exceeding or resulting in unusually high electricity Electricity generation may decrease in close to EPA’s 2007 heat input demand. For example, in 1998, large one State but, because electricity is projection means that the actual 2007 parts of the NOX SIP Call region generated and sold on a regional basis, State heat input will exceed EPA’s 2007 experienced particularly warm weather, the decrease may simply reflect the fact projection. However, EPA believes that, and the country experienced an that customers are using electricity even if they had shown that there was economic boom. The model will not generated in another State. Three a substantial risk that the actual heat predict extra heat input in such years. factors—the deregulation of electricity input would turn out to exceed the The IPM accounts for unplanned generation, the restructuring of the projection in 2007, this would not make outages in a similar way. It assumes electricity industry, and the efforts of EPA’s projection unreasonable. that, on average, plants will be available the Federal Energy Regulatory Projections may not match perfectly some portion of time less than 100%. Commission to promote market-based actual, future values and are not The model also includes assumptions rates of electricity and required to do so. See Appalachian about a capacity reserve margin, thereby nondiscriminatory access for all Power v. EPA, 249 F.3d at 1052 (stating assuring that the costs of building plants electricity supplies to the transmission that the fact that ‘‘a model is limited or that may be needed to meet demand are system—have resulted in significant imperfect is not, in itself, a reason to accounted for. However, the model does amounts of electricity being generated remand agency decisions based upon not assume that any specific units are in one State and sold in another. For it’’). If the projections of the results of out for any extended length of time. In example, in 1993, West Virginia complex activities (here, State heat reality, unplanned outages do not affect generated three times the amount of input resulting from the operation of the every unit for the same amount of time electricity sold in that State, and in regional electricity market) were every year. Therefore, the model will 1999, Alabama generated one and a half required to match actual, future results, not predict exactly the dispatch pattern times the amount of electricity sold in this would, in effect, preclude the use of units in the real world. These that State. Historically, electricity was of projections or a model to develop differences could be substantial in a generated and sold by vertically such projections. year or more. For example, if several integrated utilities providing for In this case, where EPA developed large nuclear units went out of service generation, transmission, and State heat input growth rates using the in one geographic region for an distribution for all customers in a IPM and applied them to a State extended period of time (as was the designated franchise service area, which baseline to project 2007 State heat case, discussed below, when two units input, there are unavoidable sources of often was within a single State. at the Cook Nuclear Plant went out of With electricity deregulation, variability between projections and service during 1998 through 2000), restructuring, and Federal policies actual, future heat input data. These fossil fuel-fired units might have a promoting competition and open sources of variability are: the necessity significant increase in heat input to transmission access, the industry has to make simplifying assumptions in a provide the electricity that would been changing ‘‘from a vertically model; the necessity to model regional otherwise have been generated by the integrated and regulated monopoly to a activities (i.e., electricity generation, nuclear units. The model would not functionally unbundled industry with a transmission and distribution) but make predict this large increase in heat input. competitive market for power State-by-State projections of heat input The IPM also picks the optimum way generation.’’ The Changing Structure of resulting from those activities; and the to minimize costs given the constraints the Electric Power Industry 1999: inherent, year-to-year variability of that have been included in the model. Mergers and Other Corporate actual State heat input. In the real world, different people and a. Models, such as the IPM, Combinations, Energy Information different companies may have differing necessarily contain simplifying Administration, December 1999 at pg. 5. viewpoints about what future assumptions. The IPM simulates the Non-utilities are participating in the constraints may be. This may lead them complex operation of the electricity electricity market to an increasing to act differently than the model generation, transmission, and extent by generating electricity for sale projected. For instance, the model is distribution sector. Like any model given specific constraints regarding the 24 See http://www.sargentlundy.com/fossil/ designed to simulate complex projected future demand for electricity. plant.asp; and http://www.pegasustec.com/docs/ phenomena, the IPM must use It assumes that there are just enough NICE3.pdf. simplifying assumptions in order to units to meet that demand plus a reserve
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margin. In the real world, future additional differences between heat input because of the addition of demand is less certain, and this can lead projected and actual State heat input. new, very low NOX emission units to construction of fewer or more units These differences should not be taken to accounting for much of the increased than projected by the IPM. indicate that the heat input growth heat input. The vast majority of new For any particular State, a series of methodology or the resulting projections units added since 1996 are or will be events may occur that differ from the are unreasonable. gas-fired combustion turbines and model’s assumptions, such as a period c. Actual State heat input is combined cycle units that include gas- of higher electricity demand first caused inherently variable. State heat input is fired combustion turbines and duct by warmer weather than assumed in the quite variable, as discussed in section burners. Because NOX emissions from model, followed by a period of higher V.D.4 of this notice. This is because heat these units will be very low and economic activity than assumed in the input results from the activities of the significantly below the 0.15 lbs/mmBtu model. This series of events may lead, complex, regional electricity market. level used to set the State NOX emission over a year or more, to actual heat input The variability of State heat input from budgets for EGUs, the rate of increase in that is higher than modeled for that year to year may well result in NOX emissions in any State will be State. In subsequent periods, the additional differences between significantly less than the actual 1996– different-than-modeled factors may projected and actual State heat input for 2007 growth rate in State heat input. return to levels closer to those modeled, any particular year. Again, these Specifically, EPA projects that gas- so that heat input returns to levels differences should not be taken as an fired generation will increase at a closer to those modeled. indication of unreasonableness of the greater rate than coal-fired generation. In short, in designing the IPM, EPA heat input growth methodology or the (See Analyzing Electric Power at pg. 7, necessarily made many assumptions. projections. Table 1, Winter 1998 Base Case Forecast These assumptions may well result in for the U.S. of Electric Power Generation 8. Commenters Overstated the Impacts differences between projected and by Fuel Type (billion KWh), which of Actual State Heat Input Exceeding actual State heat input for a specific indicates that coal generation will Projected State Heat Input year or specific years. However, this increase by 85 billion KWh between would not make the heat input Even if EPA’s heat input projections 2001 and 2005 and by 95 billion KWh projection methodology or the resulting turn out to be lower for some States than between 2001 and 2007, while oil/gas heat input projection unreasonable. actual 2007 heat input, the impacts of generation 26 will increase by 95 billion b. While the electricity industry any such differences will not be as KWh between 2001 and 2005 and 158 functions on a region-wide basis, significant as commenters suggest. This billion KWh between 2001 and 2007.) 27 budgets must be established on a State- is because the impacts will be mitigated In other words, EPA projects that gas- by-State basis. Another source of by: (i) The fact that much of heat input fired generation will increase at a rate differences between projected and growth will come from new, very low 1.66 times faster than coal-fired actual State heat input is that, while NOX emission units; and (ii) the generation (for every 3 Mwh increase in NOX emission budgets must be flexibility provided by the NOX cap- coal-fired generation, there would be a projected on a State-by-State basis, and-trade program. 5 Mwh increase in gas-fired generation.) electricity is generated and sold on a a. Higher than projected State heat Because gas-fired combined cycle units regionwide, not State-by-State, basis. As input will not mean proportionately are more efficient than coal units, heat discussed above in section V.D.6 of this higher NOX emissions. Commenters input from both categories of units will notice, deregulation of electricity claimed that EPA’s projections increase at a similar rate, even though generation, restructuring of the electric underestimate heat input for certain generation from the gas-fired units will industry, and Federal policies States and would result in sources in increase at a faster rate. This projected promoting market-based electricity those States facing underestimated, and trend of increasing use of gas-fired prices and open access to transmission so overly stringent, NOX emissions combined-cycle use is consistent with have resulted in development of a budgets. Commenters also stated that observed results. For example, for the regional electricity market. The IPM underestimated State heat input would years 2000–2004, electric utilities necessarily models electricity cause electric supply interruptions. In reported plans to add 38,051 MW of generation and sales on a regional basis addition, commenters suggested that generating capacity in new units. in order to reflect the regional nature of underestimated State heat input would Ninety-three percent of this total is gas- the electricity sector. For instance, as jeopardize or prohibit economic growth fired capacity (Inventory of Electric explained above, the model divides the in those States by increasing EGU Utility Power Plants in the U.S. 1999, U.S. into subregions based on the NERC operating costs and jeopardizing access Energy Information Administration, regions and on transmission constraints, to adequate electricity by preventing September 2000, at pg. 1). This is a not based on State boundaries. (See new EGUs from locating in the State.25 continuation of the trend in 1997–1999, section V.C.5 of this notice discussing The NOX SIP Call and the Section 126 when most new capacity for utilities subregions in the IPM.) Rule limit units’ NOX emissions, not (81% in 1997 and 88% in 1998 and However, EPA had to develop State- their heat input. EPA anticipates that, as 1999) has been gas-fired combustion by-State NOX emission budgets under State heat input grows from 1996 to turbines and combined cycle units.28 the NOX SIP Call. EPA used those same 2007, a State’s total EGU NOX emissions budgets under the Section 126 Rule in will grow at a much slower rate than 26 Oil/gas units are included in the same category order to allow a single cap-and-trade because many units that burn one fuel can also burn program to be developed and 25 One commenter claimed EPA’s heat input the other. However, as the analysis points out, more growth methodology thereby results in ‘‘draconian inefficient oil/gas boilers are being retired and most implemented under both the NOX SIP economic sanctions’’ and a ‘‘no-growth policy’’ for of the increase in generation comes from highly Call and the Section 126 Rule. EPA had Michigan. As discussed below in section V.D.9 of efficient, highly controlled natural gas combined to disaggregate regionally-developed this notice, there is no basis for claiming that EPA’s cycle units. Analyzing Electric Power at 8. heat input projections down to the State heat input growth rate underestimates Michigan’s 27 EPA notes that oil generation will account for level in order to establish State NO future heat input. In fact, Michigan’s actual heat a trivial amount of oil/gas generation. X input has never exceeded EPA’s 2007 projection 28 Inventory of Power Plants in the U.S. as of emission budgets, and this and, since 1998, has declined to where for 2001 it January 1, 1998, EIA, December 1998, at pg. 3; disaggregation may well create is 8.7% below that projection. Inventory of Electric Utility Power Plants in the U.S.
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New EGUs are subject to new source budget. Similarly, commenters greatly trade program covering NOX emissions review requirements and, therefore, are overstated the impacts of higher-than- from EGUs. Most States have already well controlled. New combined cycle projected State heat input on the State taken this option by submitting a SIP turbines generally are permitted at 9 economy. Since new units tend to have and final regulations adopting such a ppm or less (i.e., less than 0.035 lb/ very low NOX emissions, higher-than- program, and EPA has approved a mmBtu).29 This means these new units projected State heat input will not number of State rules, including will emit about one-fifth of the average prevent the location of new units in the Alabama’s (66 FR 36919, July 16, 2001) 0.15 lb/mmBtu NOX emission rate State to the extent suggested by and Illinois’ (66 FR 56434, Nov. 8, assumed for EGUs in the NOX SIP Call commenters. Moreover, the amount of 2001). West Virginia has developed final and Section 126 Rules. Most existing electricity available in a State is not tied regulations adopting EPA’s combined-cycle units are controlled to to the amount of electricity generated in recommended cap-and-trade program, levels similarly below 0.15 lb/mmBtu. that State since electricity is generated as have North Carolina, South Carolina, Consequently, NOX emissions will grow and sold on a regionwide, not State-by- and Tennessee. Michigan, Virginia, and at a much lower rate than heat input as State, basis. Therefore, higher than Ohio have draft regulations adopting these units come online. projected State heat input will not limit such a program. Only Georgia and For example, consider the the amount of electricity available for Missouri do not have draft or final hypothetical case where 1996–2007 heat industrial, commercial and residential regulations since EPA has not yet input growth would be 10% and about customers in that State. (See section finalized a rule responding to the equally divided between generation V.D.6 discussing that State heat input is Court’s remand of the NOX SIP Call for from new gas-fired units and increased not necessarily correlated with those two States. (See Docket A–96–56, capacity utilization at existing coal-fired availability of electricity and economic Item # XII–K–84). units. Because emissions from the gas- growth in the State.) Since the Under the Section 126 Rule, EPA fired units are only one-fifth of the 0.15 commenters ignore the fact that a State’s required affected units to participate in lb/mmBtu NOX emission rate assumed electricity supply is not limited to the a cap-and-trade program, which is in the NOX SIP Call and the Section 126 generation capacity in that State and virtually identical to the cap-and-trade Rule, NOX emissions would grow only since, as discussed above, EPA’s programs that have been (or are likely to 1% while heat input would grow 5% at regional heat input projections are be) adopted by States under the NOX new gas-fired units. A 5% growth in consistent with actual regional heat SIP Call. In fact, EPA has stated that it heat input at existing coal-fired plants input, the commenters failed to show intends to integrate the approved SIP emitting at the 0.15 lb/mmBtu NOX that underestimated State heat input trading program with the Section 126 emission rate would result in a 5% will prevent access to adequate trading program into a single cap-and- growth in NOX emissions from the coal- electricity supply. trade program. fired units in this example. Thus, the Finally, some commenters claiming Under the cap-and-trade program, the total NOX emissions growth would be that low heat input growth rates would State EGU NOX budget is allocated about 6% when total heat input growth prevent new units from locating in among the affected units in the form of was 10%. certain States also claimed that large NOX allowances, each allowance In summary, even if State heat input numbers of new units are being located providing an authorization to emit one grows at a rate faster than projected by in those States and that this shows that ton of NOX during the ozone season for EPA, NOX emissions will grow at a EPA’s heat input growth rates are too which the allowance is allocated or for much slower rate than State heat input low. However, the fact that new units any subsequent ozone season. After the and the impact on the State’s EGU NOX are continuing to be located in these end of each ozone season, the owner or emission budget from the difference States indicates that the selected operator of each affected unit is required between actual and projected heat input locations in these States continue to be to surrender a number of NOX growth will be significantly reduced. economically desirable for new units, allowances equal to the number of tons This is reflected in EPA’s modeling despite the NOX emission budgets that that the unit emitted during that period. showing that increased heat input EPA established under the NOX SIP Call Owners or operators (or any other growth would not significantly increase in 1998 and modified in the Technical person) may buy or sell allowances or the cost of meeting the State NOX EGU Amendments in 1999. One reason for bank allowances for use in future years. budget. Even when electricity demand this, of course, is that most of these new The ability to trade and bank allowances growth is assumed to be higher than units are gas-fired units with very low provides units in a State flexibility in EPA projected (e.g., with no electricity NOX emission rates. complying with the NOX emission limit demand reductions under CCAP), the b. The cap-and-trade program will under the NOX SIP Call and the Section average cost of meeting the NOX EGU further limit the impact of higher than 126 Rule and thereby limits the impact budgets only increased $40/ton. projected State heat input. The NOX SIP that higher than projected heat input Since higher than projected State heat Call and the Section 126 Rule are being would have on the cost of compliance. input growth results in much less than implemented through a cap-and-trade Specifically, the owner or operator of proportionately higher State NOX program that will reduce the cost of a unit with an allowance allocation emissions, the commenters greatly meeting the State NOX emission budgets lower than the unit’s tonnage of NOX overstated the impacts of higher-than- and thus will limit the cost impact of emissions for an ozone season has projected State heat input on the higher than projected State heat input. several compliance options, including stringency of the NOX emission rate Under the NOX SIP Call, each State is the options of installing and operating reflected in the State NOX emission required to revise its SIP to meet the additional NOX emission controls at the NOX emission budget for 2007, which unit or of purchasing allowances 1999 With Data as of January 1, 1999, EIA, was developed using, among other allocated to other units in the same November 1999, at pg. 1; Inventory of Electric things, the State’s heat input growth rate State or in other States under the trading Utility Power Plants in the U.S. 1999, EIA, projected by EPA. Each State has the program. The owners or operators will September 2000 at pg. 1. 29 See EPA Region 4 National Combustion option of meeting its NOX emission presumably choose the most Spreadsheet maintained at http://www.epa.gov/ budget by submitting a revised SIP that economically efficient option. If the cost region4/air/permits/national_ct_list.xls. adopts EPA’s recommended cap-and- of allowances in the regionwide market
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for allowances under the trading these States recently had actual heat implied that EPA should project the program is less than the cost of input that exceeded EPA’s projected State heat input for 2007 using the installing and operating additional heat input for 2007.31 In the seventh actual 1996–2000 growth rate. However, controls at the unit, then the owner or State, Virginia, commenters claimed EPA believes that it is inappropriate to operator will purchase allowances. that the State’s heat input had project long-term heat input growth to Assuming, for the sake of argument, the almostexceeded EPA’s projections and 2007 based on a short-term historic unit is in a State where actual heat input would soon do so. With regard to some trend (here, 1996–2000 heat input for the year exceeds EPA’s projected States, commenters also suggested that growth) for several reasons. Because 2007 heat input and actual NOX actual data and projections concerning heat input can vary greatly from year to emissions exceed the NOX emission electricity demand, economic output, year because of factors such as the budget, the cost impact of the difference population, and new generating weather and the economy, short-term between actual and projected heat input capacity for these individual States trend data can be greatly skewed. is limited by the owner’s or operator’s support higher heat input growth rates Moreover, as discussed above, in option to buy allowances, rather than than the rates adopted for those States order to test the validity of using a installing emission controls.30 by EPA. relatively short period of years of actual Moreover, as discussed above in EPA believes that, in general, these State heat input data to project future section V.D.4 of this notice, State heat comments have common flaws that State heat input, EPA simulated that input is quite variable. Even if actual prevent them from providing a basis for approach using historical annual heat State heat input exceeds EPA’s concluding that EPA’s heat input input data for the 21 NO X SIP Call projected 2007 heat input in one or growth rates are unreasonable for the States for 1960–2000 (or in some States more years, it is quite possible that particular States at issue. First, several where less data was available, from actual State heat input will be less than commenters flatly stated or implicitly 1970–2000). See section V.D.4 of this EPA’s projected 2007 heat input in a assumed that significant negative notice. Based on this data, EPA used 6 growth in heat input was not plausible years’ worth of historical data (e.g., later year. Under the NOX cap-and-trade program, the owner or operator in the for their respective States between now 1960–1966) to project annual heat input example above who has to buy and 2007. As noted above, historical for the sixth year after the 6-year period allowances in one year may have excess heat input data show that individual (e.g, 1972). EPA did this on a rolling allowances during the subsequent year State’s heat input can decrease basis. For 16 States, EPA found that of reduced State heat input. That owner significantly in the last year, as there was a very little correlation or operator may sell allowances and compared to the first year, of multi-year between the predicted value based on thereby offset, at least in part, the cost periods and is quite variable from year- the historical 6-year periods and the of buying allowances in the previous to-year. (See section V.D.4 of this actual value for the sixth year after that year. EPA is not suggesting that such an notice.) period. For four of the remaining five Indeed, the State heat inputs for four offset of costs will always be available. States, the correlation was weak. In of the States that, as commenters have Rather, EPA notes that the cap-and-trade short, the commenters’ approach of emphasized, rose to over or nearly over program will tend to create the potential using historical State fossil fuel use for EPA’s 2007 projections, have recently to offset in one year a unit’s shortfalls a relatively short period of years is not decreased to below or nearly below the in allocations (whether or not a reliable method for predicting future 2007 projections. Specifically, the heat attributable to higher than projected State heat input. input of Michigan—which in 1998 was Third, in pointing to certain factors State heat input) in another year. close to EPA’s 2007 projection and, concerning each individual State to 9. Discussion of Individual States for along with West Virginia, was the focus support the claim that the State’s heat Which EPA’s Heat Input Growth Rates of the Court’s concerns about EPA’s input could not reasonably be projected Are Disputed by Commenters growth rates—has declined since 1998 to decline, commenters implicitly assumed that the State’s heat input is Out of the 21 States and the District and remained well below EPA’s 2007 determined solely by those State- of Columbia for which EPA developed projection. The heat input of West specific factors, rather than by the heat input growth rates and heat input Virginia was higher in 1998, and still is operation of the regional electricity projections for EGUs for 2007, slightly higher, than EPA’s 2007 market as a whole. EPA believes that commenters specifically disputed the projection but has declined over 8% heat input for an individual State heat input growth rates and projections since 1998. Georgia’s heat input recently cannot reasonably be projected by for 7 States, i.e., Alabama, Georgia, increased above EPA’s 2007 projections considering only the State’s projected Illinois, Michigan, Missouri, Virginia, but decreased in 2001 below that projection. EPA maintains that the electricity demand and other State- and West Virginia. In six States, the specific factors. Because electricity is commenters claimed that EPA’s heat recent heat input decreases and the variability in State heat input show why generated and sold in a regional input growth rates and heat input electricity market, an individual State’s projections are unreasonable because the fact that current heat input for a State exceeds, or is close to, EPA’s 2007 heat input is not determined, and cannot reasonably be projected, based 30 Commenters have characterized EPA’s heat input projection for the State does preliminary views in the August 3, 2000 NODA as not show that EPA’s heat input growth solely on factors relating only to that attempting, in essence, to argue that the only thing rate and 2007 projection for the State are State. Rather, a State’s heat input must that matters is the regionwide heat input growth unreasonable. be projected using a comprehensive rate, not the individual State growth rates. This is approach that considers the regional a mischaracterization. EPA believes that as long as Second, several commenters the regionwide projection is reasonably close to the compared EPA’s heat input growth rate market. Largely for this reason, EPA actual regionwide heat input, then, as a matter of for an individual State with the heat used the IPM—which models electricity simple arithmetic, trading opportunities will likely input growth that the State had during markets in the continental U.S. and the be present for any State whose actual NO X 1996–2000 and either asserted or regional electricity market for the NOX emissions exceed its NOX emission budget. As discussed above, the availability of trading, in turn, SIP Call area—in its analysis for the limits the impact of higher than expected heat 31 In one of those States, Michigan, EPA’s heat NOX SIP Call and the Section 126 Rule, input. input projections have not actually been exceeded. including the analysis for making heat
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input growth projections.32 See input to electricity, the State’s heat input growth rate is inadequate and Appalachian Power v. EPA, 249 F.3d at input may actually decline. (See unrealistic. 1053 (upholding EPA’s determination sections V.D.6 and 8 of this notice (ii) Response that ‘‘the IPM offered a more discussing that most new units are gas- comprehensive and consistent means of fired units and are likely to be more EPA notes that in 1999 and 2000, allocating emission allowances than efficient than existing units.) Moreover, Alabama’s ozone season heat input sorting through the various state- the amount of electricity that the new (389,364,461 mmBtu and 400,689,850 specific projections’’). units produce will depend on the mmBtu) exceeded EPA’s 2007 heat Contrary to this comprehensive supply and demand factors in the input projection (385,998,780 mmBtu) approach to projecting individual regional electricity market, not simply by 0.9% and 3.8% respecteviely. State’s heat input, commenters on supply and demand in the State However, in 2001 Alabama’s heat input presented projections of significant where the units are located. Thus, (391,665,691 mmBtu) fell 2.5% and was economic and population growth for projected increased new capacity may only 1.4% above EPA’s 2007 projection. individual States. While these economic potentially be a factor pointing to Further, as discussed above, EPA and population projections for a State increased heat input in the State where intends to include only the northern may suggest that there will be the new capacity is to be located, but, portion of Alabama in the NO X SIP Call. significant growth in electricity demand because so many other factors are When actual heat input for 2001 for in that State, these State-specific factors involved, that does not necessarily northern Alabama is compared with suggest little about whether the State’s mean heat input will increase in that EPA’s recently proposed 2007 increased electricity demand will be State. projection for northern Alabama, the met from in-State EGUs. It may be met In light of the above discussion, EPA actual heat input in northern Alabama through increased generation from units (284,528,783 mmBtu) is 7.9% below within the State, which may increase does not believe that commenters have demonstrated that it is unreasonable to EPA’s 2007 projection (308,912,352 that State’s heat input, or it may be met mmBtu).33 through increased generation from units project that the heat input for those Moreover, as discussed above, outside the State from which the State States with recent heat input exceeding individual State heat input is quite imports electricity, which may increase EPA’s 2007 projections will decline by variable and can decrease significantly the heat input for another State. Even if 2007 to the levels projected by EPA. over multi-year periods. In fact, the electricity demand is met by units EPA addresses below the specific historical data for 1960–2000 shows that in the State that has the increased comments made about each State whose there have been periods in the past demand, the State’s heat input may be heat input growth rate and heat input when Alabama’s annual heat input affected by the amount of electricity that projection are in dispute. decreased significantly for the last year, the State exports to other States, as well a. Alabama as compared to the first year, of a multi- as by the amount of electricity used year period. For example, for the 8-year within the State. The State’s heat input (i) Comments period 1974–1982 (comparable in length may still decline under these A commenter stated that Alabama’s to the period 1999–2007), Alabama’s circumstances if such exports decline. gross State product is projected to grow annual heat input decreased by 12%.34 In short, because electricity is generated at 2.5% per year during 2001–2010. The Ozone season heat input decreased 17% and sold on a regional basis, a State’s commenter also noted that the ‘‘average over the same period, 1974–1982. Thus, heat input can decrease even as the annual economic growth rate for the the fact that Alabama’s most recent heat State’s electricity demand increases. region’’ was 3.9% per year during 1995– input exceeded EPA’s 2007 projection Because the comments on individual 2000, Alabama has recently had States failed to address these regional ‘‘economic annual growth’’ well over 33 factors, the commenters’ claims that the EPA calculated the partial State heat input 3%, and seasonal heat input growth for budgets for large EGUs for Alabama, Georgia, and respective State’s heat input could not Alabama has averaged 3.37% per year in Missouri by summing the heat input for 1996, 1995, be expected to decline to the level of and 1995 respectively for all such units in the fine 1996–2000. Noting that Alabama’s heat EPA’s 2007 projection are unpersuasive. grid counties of the particular State and applying input in 1999 and 2000 exceeded EPA’s Another State-specific factor on the appropriate growth rate. This information is in 2007 heat input projection, the Docket Item XV-C–29 and is consistent with the which some commenters relied in commenter claimed that ‘‘[n]egative partial State NOX emission budgets proposed in 67 challenging EPA’s heat input growth Fed. Reg. 8395, 8416, Feb. 22, 2002. growth between now and 2007 for rate for an individual State is the 34 EPA’s review indicates that one out of the 33 Alabama is simply not a plausible amount of new capacity that has been eight-year periods from 1960–2000 had a decrease scenario.’’ The commenter compared in annual heat input of well over 3.8% (Docket # permitted or that is under construction EPA’s heat input growth rate to the A–96–56, Item # XV–C–18, at 1), while three out of in that State. The commenters assumed State’s historical heat input growth rate the 20 eight-year periods from 1970–1998 had a that a significant amount of new, decrease in ozone season heat input, with a for 1995–2000. Claiming that nuclear permitted capacity or capacity under decrease of well over 3.8% for two periods (Docket generation increased during 1995–2000 # A–96–56, Item # XV–C–19, at 1). Since these construction necessarily means that the but is not expected to increase periods—although a minority—indicate that such State’s heat input will increase significantly during 2001–2007, the decreases can occur, EPA believes that its significantly. However, owners and methodology should not be considered commenter suggested that Alabama’s operators may seek permits for units unreasonable based on the recent State heat input. heat input will grow even more than the Moreover, while these long-term historical data that, as it turns out, are not actually historical heat input growth rate. certainly show the potential for such decreases, the built. Further, new units that are built Finally, the commenter stated that the data are otherwise of limited use in projecting and operated may displace existing future heat input. As explained in Section V.D.6. of NO units and, since the new units are likely X SIP Call currently applies only to this notice, the electricity industry has been to be more efficient in converting heat the northern two-thirds of the State, undergoing deregulation of generation and where most of the State’s population restructuring. As a result, trends in the past, as reflected in the data, may not continue in the 32 EPA also used the IPM in order to make sure centers are located and most economic future. The IPM reflects these changes, and by using that consistent assumptions were used for growth will be concentrated. This is the IPM in developing heat input growth rates, EPA projecting each State’s heat input growth. cited as another reason why EPA’s heat has taken these changes into account.
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does not mean that the projection is TABLE 10.—GROSS ALABAMA STATE 80,401,000 Mwh of electricity were sold unreasonable. PRODUCT GROWTH RATE VS. HEAT in Alabama. Therefore, in order to Further, while the commenter did not INPUT GROWTH RATE FOR 1996– assess whether electricity generation or provide the data to support its claims 1999 heat input in Alabama will grow, it is about Alabama’s economic growth or necessary to consider not only electricity demand in Alabama, but also growth in gross State product, EPA used BEA Gross State Heat input electricity demand and supply in the data from the Bureau of Economic Year product growth rate regional market for electricity outside of Analysis to evaluate the commenter’s growth rate (percent) Alabama. The commenter did not (percent) claims. The commenters assumed, but provide any information on future did not demonstrate, that growth in 1996 ...... 2.8 0.2 electricity demand and supply outside gross State product necessarily results 1997 ...... 3.4 ¥0.2 of Alabama and how they might affect in growth in heat input. In fact, data for 1998 ...... 2.9 5.6 future generation and heat input in 1996–1999 for Alabama, as reflected in 1999 ...... 4.2 5.2 Alabama. Table 10 below, shows that growth in The lack of strong correlation between gross State product does not necessarily There are several reasons that EPA economic growth and heat input is result in growth in heat input. For believes that heat input growth on a confirmed by historical data on example, in 1997, State heat input State level does not correlate with electricity demand and heat input in declined 0.2% while gross State product economic growth. First, electricity northern Alabama. Noting that the NOX grew 3.4%. In 1996, while Gross State demand is affected by many variables. SIP Call now covers only the northern Product grew at 2.8%, heat input grew This includes not only economic part of Alabama (the fine grid counties), at a much slower rate of 0.2%. EPA growth, but also other factors such as the commenter presented evidence tested the correlation of heat input weather and changes in efficiency in the suggesting that the economy and growth rate to gross State product use of electricity. population are growing faster in the growth rate using the r-squared test, Second, as discussed above, a State’s northern part than in the southern part which is described above in section heat input does not necessarily correlate of the State. The commenter suggested V.D.5 of this notice. EPA found that the with the State’s electricity demand. (See that heat input will therefore grow faster two sets of growth rate data have a r- section V.D.6 of this notice discussing in northern Alabama than in the State squared value of 0.12, showing very that State heat input can decline when as a whole. EPA reviewed heat input little correlation between growth in heat State electricity use increases.) For data for Alabama and found that, instance, in the case of Alabama, the input and growth in gross State product. despite higher growth in the economy State is generally a net exporter of and population in northern Alabama, electricity. In 1999, Alabama EGUs heat input has actually grown faster in generated 120,865,327 Mwh of the southern part of the State. The data electricity. In that same year, only are summarized in Table 11 below.
TABLE 11.—HEAT INPUT (MMBTU) IN ALABAMA FOR 1996–2001
Fine grid Outside fine counties grid counties All counties
1995 ...... 279,392,756 70,666,448 350,059,204 1996 ...... 280,829,411 70,078,571 350,907,982 1997 ...... 277,733,999 72,594,373 350,328,372 1998 ...... 298,464,504 71,513,696 369,978,200 1999 ...... 318,056,030 71,308,431 389,364,461 2000 ...... 314,726,690 85,693,161 400,689,850 2001 ...... 284,528,783 107,136,907 391,665,690 Avg Annual Growth Rate 1996 to 2001 ...... 0.4 8.7 2.3
Finally, EPA notes that the generation in Alabama grew much less that nuclear generation will increase, commenters’ claim concerning the effect than during 1995–2000. Nuclear they cast doubt on the commenters’ of Alabama’s nuclear generation on the generation was 13,321,089 Mwh in the assertion that nuclear generation will State’s heat input growth rate appears to 1999 ozone season and 13,578,728 Mwh not grow. be overstated. The commenters stated in the 2000 ozone season. Because there For the above reasons, EPA rejects the that nuclear generation in Alabama was only limited growth in nuclear commenters’ claims that EPA’s heat increased during 1995–2000 and is not generation from 1996 to 2000, there is input growth rate and 2007 heat input expected to continue to increase and no basis for commenters’ claim of projection of Alabama are unreasonable. that therefore the State’s heat input will increased heat input growth in the b. Georgia increase at a greater rate starting in future to offset limited growth from 2001. However, while Alabama’s ozone nuclear units. Furthermore, the Nuclear (i) Comments season nuclear generation increased Regulatory Commission is anticipating Commenters pointed to EPA’s data as significantly from 1995 to 1996 that applications will be submitted to showing that Georgia’s ozone season (8,371,445 Mwh to 13,161,369 Mwh increase the generating capacity of two heat input increased more than 3.3% during the ozone season), EPA used nuclear powered units at the Brown’s per year from 1995 to 2000, as compared 1996 as the baseline year for Ferry Plant by 14%. (Docket # A–96–56, with EPA’s projected increase of 1.01% determining Alabama’s NOX emission Item # XV-C–27.) While these per year through 2007. Further, budget. During 1996–2000, nuclear applications do not necessarily mean commenters noted that Georgia’s current
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heat input exceeds EPA’s 2007 heat 2007 heat input projection (403,368,582 as compared to the first year, of multi- input projections and so the State’s heat mmBtu). However, in both cases, heat year periods and, for example, input will have to decrease by 2007 in input fell significantly the next year and decreased by 17% over the seven-year order for the projection to be correct. was below EPA’s 2007 projection. period 1985–1992 (comparable in length Commenters cited several factors—i.e., Georgia’s heat input fell 3.9% between to the period 2000–2007).35 Ozone rapid population growth, projected 1998 and 1999 and 10.9% between 2000 season heat input decreased 9.9% over growth in peak demand for electricity, and 2001. In 2001, the State’s heat input the same period, 1985–1992. and rapid growth in gross State (374,355,956 mmBtu) was 7.2% below Furthermore, as discussed above, EPA product—to show that Georgia’s heat EPA’s 2007 projection. Further, as does not believe that commenters have input will continue to grow faster than discussed above, EPA intends to include shown that increases in parameters such EPA projected. Commenters also stated only the northern portion of Georgia in as population, economic output, or peak that the NOX SIP Call will cover only the NOX SIP Call. When actual heat the northern part of Georgia (the fine input for northern Georgia for 2001 is electricity demand in a particular State grid counties), whose population is compared with EPA’s recently proposed necessarily mean that heat input will growing faster than in the southern 2007 projection for northern Georgia, increase in that State. In fact, EPA’s portion of the State. The commenters actual 2001 heat input (360,162,148 analysis of the heat input data for the suggested that the heat input will mmBtu) is 8.2% below projected heat northern and southern portions of therefore grow even faster for the input (392,215,442 mmBtu). Georgia shows that recently heat input northern part of Georgia. Moreover, as discussed above, has increased more in the southern part individual State heat input is quite of the State, where, according to (ii) Response variable and can decrease significantly commenters there has been less growth EPA notes that Georgia’s heat input in over multi-year periods. In the past, in population, than in the northern part 1998 (403,716,898 mmBtu) and 2000 Georgia’s annual heat input has of the State. The data are summarized in (420,260,694 mmBtu) exceeded EPA’s decreased significantly for the last year, Table 12 below.
TABLE 12.—HEAT INPUT (MMBTU) IN GEORGIA FOR 1995–2001
Outside Fine grid fine grid All counties counties counties
1995 ...... 347,093,311 9,870,035 356,963,346 1996 ...... 326,944,480 9,032,533 335,977,013 1997 ...... 342,870,775 8,336,975 351,207,750 1998 ...... 390,888,493 12,828,405 403,716,898 1999 ...... 370,011,938 17,769,163 387,781,101 2000 ...... 399,110,359 21,150,335 420,260,694 2001 ...... 360,162,148 14,193,808 374,355,956 Avg Annual Growth Rate 1995 to 2001 ...... 0.6 6.2 0.8
For the above reasons, EPA rejects the pointed to the 2000 ozone season from 34% to 8%, EPA explained in the commenters’ claims that EPA’s heat (described as a relatively mild summer) NO X SIP Call that the Agency took input growth rate and 2007 heat input when heat input was 15% higher than comment on using two alternative projection of Georgia are unreasonable. the 1996 baseline. Commenters electricity demand forecasts to develop suggested that total growth from 1996 to c. Illinois the State NOX emission budgets and to 2007 could exceed 30%, far above EPA’s perform the cost-effectiveness analysis. (i) Comments 8% estimate, and that the data support One alternative was a 1995 electricity Commenters were concerned that EPA a growth of 34% and certainly no lower demand forecast, modified by demand initially proposed to establish the than 22%. Commenters asserted that it reductions under CCAP, that was used Illinois heat input growth rate at 34%, is also not likely that heat input in the in an IPM run (‘‘1996 IPM Base Case but then adopted a final growth rate of State will decline below 2000 levels forecast’’) and would have resulted in 8%. Commenters contended that the 8% because Illinois has approved an certain heat input growth rates growth rate does not reflect a realistic additional 436.6 million mmBtu/ozone (‘‘corrected’’ growth rates), including a growth projection for the State, in light season in generating capacity since 1999 growth rate of 34% for Illinois. The of the actual heat input growth in for which construction has been second alternative was a 1997 electricity Illinois during 1995–2000. According to initiated, with an additional 25.2 demand forecast, modified by demand the commenters, the actual heat input million mmBtu pending. reductions under CCAP, that was used growth for 1995–2000 exceeded EPA’s (ii) Response in a later IPM run (‘‘1998 IPM Base Case projected growth rate, and by 1998 forecast’’) and resulted in another set of Illinois’ heat input exceeded EPA’s heat With regard to EPA’s revision of heat input growth rates (‘‘revised’’ input projection for 2007. Commenters Illinois’ annual heat input growth rate growth rates), including a growth rate of
35 EPA’s review indicates that four out of the 34 XV–C–19, at 10). Since these periods—although a Section V.D.6. of this notice, the electricity industry seven-year periods from 1960–2000 had a decrease minority—indicate that such decreases can occur, has been undergoing deregulation of generation and in annual heat input, with a decrease of over 4% EPA believes that its methodology should not be restructuring. As a result, trends in the past, as for three periods (Docket # A–96–56, Item # XV– considered unreasonable based on the recent State reflected in the data, may not continue in the C–18, at 10), while two out of the 21 seven-year heat input. Moreover, while these long-term future. The IPM reflects these changes, and by using periods from 1970–1998 had a decrease in ozone historical data certainly show the potential for such season heat input, with one of those decreases decreases, the data are otherwise of limited use in the IPM in developing heat input growth rates, EPA greatly exceeding 4% (Docket # A–96–56, Item # projecting future heat input. As explained in has taken these changes into account.
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8% for Illinois. As explained in the NOX heat input (434,282,881 mmBtu) Illinois’ decreases in heat input over SIP Call (63 FR 57409), EPA used the declined by 3.7% from the 1998 level the last few years may be partly 1998 IPM Base Case forecast (as the base and was 6.1% higher than EPA’s 2007 attributed to an increase in nuclear case run described in section V.B.1 of projection. As discussed above, generation in Illinois since 1998, as this notice) and resulting heat input individual State heat input is quite shown in Table 13. In both 1997 and growth rates because that forecast variable and can decrease significantly 1998, five nuclear units representing reflected assumptions that had been over multi-year periods. In the past, over 5000 MW of capacity (nearly 14% revised based on public comment and Illinois’ annual heat input has decreased of the total installed capacity in Illinois) that ‘‘lead to a better projection of significantly for the last year, as were offline. This resulted in electricity generation nationally, by compared to the first year, of multi-year significantly less generation from 36 region and by State.’’ periods and, for example, decreased nuclear units. It appears that at least EPA notes that Illinois’ heat input in 31% over the 9-year period 1981–1990 some of the generation was made up by 1998 (450,929,580 mmBtu) exceeded (comparable in length to the 1998–2007 additional fossil-fired generation. In EPA’s 2007 heat input projections period).37 Ozone season heat input 1999, when three of the nuclear units (409,351,519 mmBtu), by 10.2% and has decreased 25.8% over the same period, continued to exceed that projection. 1981–1990. Thus, the fact that Illinois’ returned online, heat input declined. However, the State’s heat input peaked recent heat input exceeded EPA’s 2007 During this period, electricity demand in 1998 and has remained below the projection does not mean that the in Illinois increased. 1998 level since then. By 2001, Illinois’ projection is unreasonable.
TABLE 13.—HEAT INPUT, NUCLEAR GENERATION, AND ELECTRICITY SALES IN ILLINOIS FOR 1995–2001
Nuclear Electricity Year Heat Input generation sales (mmBtu) (Mwh) (Mwh)
1995 ...... 347,985,300 35,410,101 55,960,000 1996 ...... 379,029,184 29,038,573 53,348,000 1997 ...... 406,127,886 23,038,672 53,357,000 1998 ...... 450,929,580 25,331,514 58,665,000 1999 ...... 418,420,171 37,004,253 60,470,000 2000 ...... 436,052,570 38,287,858 59,834,000 2001 ...... 434,282,881 38,590,400 60,310,000
The commenters did not provide any relatively low operating costs.38 As a input. The commenters did not provide information on future nuclear result, nuclear generation in Illinois any information on future electricity generation in Illinois and how that may well increase in the next 2 years demand and supply outside of Illinois might affect future generation and heat and therefore may be one factor tending or how they might affect future input in the State. However, the Nuclear to reduce heat input for the State. generation and heat input in Illinois. Regulatory Commission recently Another factor that may have been a Finally, the commenters pointed to approved significant expansions in partial cause of increased heat input in approval or construction of new units in generating capacity for several nuclear Illinois and that may change in the Illinois as showing that Illinois heat units in Illinois (i.e., a 17% expansion future is Illinois’ recently increased input will continue to grow through to about 912 MW each for Dresden 2 exports of electricity to other States. In 2007. However, as discussed above, and 3 and a 17.8% expansion to about 1994, Illinois was exporting 14% of its 912 MW each for Quad Cities 1 and 2). electricity; by 1999 that number had approval or construction of new units is The upgrades are scheduled for reached 19%. Heat input increased not a definitive indicator of increased completion during outages in 2002 and along with this increase in export of heat input in the future. 2003. (Docket A–96–56, Item # XV–C– electricity. Whether this level of exports For the reasons above, EPA rejects the 07, ‘‘NRC Approves Power Uprates for will continue will depend on electricity commenters’ claims that EPA’s heat Dresden 2, 3 and Quad Cities 1, 2,’’ supply and demand in the regional input growth rate and 2007 heat input Nuclear Regulatory Commission Press electricity market. For example, projection for Illinois are unreasonable. Release, December 26, 2001.) Once the increases in generation in neighboring capital investment is made in expanding States may lead to less of an export nuclear capacity, nuclear generation has market and therefore a decrease in heat
36 EPA stated that the improvements in the 1998 attention to cogenerators)’’ and ‘‘planning reserve the recent State heat input. Moreover, while these IPM Base Case forecast included ‘‘using the most margins and the costs of building new generation long-term historical data certainly show the recent NERC estimate for regional electricity capacity.’’ Id. potential for such decreases, the data are otherwise demand; the latest available EIA and NERC 37 EPA’s review indicates that 13 out of the 32 of limited use in projecting future heat input. As generation unit data; updated fuel forecasts; nine-year periods from 1960–2000 had a decrease explained in Section V.D.6. of this notice, the updated assumptions on nuclear, hydro-electric and in annual heat input, with a decrease of more than electricity industry has been undergoing import assumptions (with special attention to 10.2% in eight of those periods (Docket #A–96–56, deregulation of generation and restructuring. As a differences in summer use); and an increase in the Item #XV–C–18, at 13), while 11 of the 19 nine-year result, trends in the past, as reflected in the data, level of detail in the model to more accurately periods from 1970–1998 had a decrease in ozone may not continue in the future. The IPM reflects capture the transmission constraints that exist for season heat input, with a decrease of more than these changes, and by using the IPM in developing moving power between various regions of the 10.2% in eight of those periods. (Docket #A–96–56, heat input growth rates, EPA has taken these country.’’ Id. In addition, the forecast included Item #XV–C–19, at 13). Since these periods— changes into account. updated assumptions ‘‘on the size and operation of although a minority—indicate that such decreases 38 This contrasts with fossil fuel-fired units, all electricity generation units of utilities and can occur, EPA believes that its methodology whose operating costs are higher because of the cost independent power producers (with special should not be considered unreasonable based on of fossil fuel.
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d. Michigan season heat input decreased 13.4% over TABLE 14.—NUCLEAR GENERATION the same period, 1973–1982. (i) Comments VS. TOTAL UTILITY GENERATION FOR EPA believes that Michigan’s decline MICHIGAN IN 1995–2001—Contin- Commenters stated that Michigan’s in heat input in the last few years may ued heat input in 1998 exceeded EPA’s 2007 be at least partly attributable to heat input projection. Commenters also resolution of operational problems at Total stated that the Michigan Public Service the Cook Nuclear facility, as reflected in Ozone Season Utility Commission estimates Michigan’s Table 14 below.40 The spike in Year nuclear Ozone Season generation 41 growth in electricity demand to be twice Michigan’s heat input in 1998 coincides (Mwh) Generation the amount that EPA ‘‘presumed in its with the outage of two nuclear units at (Mwh) calculations’’ for the NOX SIP Call and the Cook Nuclear Plant in Michigan. 1997 ...... 12,804,255 40,660,688 Section 126 Rule and that there is no These two units are capable of 1998 ...... 4,923,916 36,618,364 basis for the ‘‘presumed’’ negative generating a total of 2285 MW, which 1999 ...... 6,472,871 38,679,849 growth in energy demand for Michigan. represents over 9% of the capacity in 2000 ...... 8,195,891 39,550,421 Further, commenters pointed to weather Michigan. Cook Unit 2 did not return to 2001 ...... 10,456,684 40,844,263 as the major reason for year-to-year service until the middle of the 2000 variability in Michigan’s heat input. ozone season, and Cook Unit 1 did not 41 EIA provided generation data for this en- Noting the hot temperatures in 1995, return to service until after the 2000 tire period only for large utility units. In the State of Michigan, non-utility units make up 1998, and 1999 and the cool ozone season. These outages resulted in about 12% of the generation capacity. temperatures in 1996, 1997, and 2000, significantly less generation from they stated that weather was the nuclear plants and coincided with With regard to the comment that primary cause of the dramatic increase significantly more fossil fuel generation EPA’s heat input projections are not in heat input in 1998 and the decline in and heat input in 1998 and 1999. As the consistent with the Michigan Public 2000. The commenters compared the nuclear units came back into service Utility Commission’s electricity demand years with similar summer weather and increased their generation, fossil projections, EPA notes that electricity patterns to find an ozone season growth fuel generation and heat input in demand and heat input are not rate of 2.0% or 2.1% per year, which is Michigan declined. Under these necessarily correlated. (See section much higher than EPA’s 1.1% projected circumstances, the fact that Michigan’s V.D.6 of this notice.) For example, from annual growth rate. Commenters also 1998 heat input came close to EPA’s 1988 to 1993, Michigan’s electricity pointed to operational problems at the 2007 projection does not demonstrate sales grew 6.1% at the same time that fossil-fuel fired Monroe Plant as that EPA’s projection is unreasonable. the State’s heat input dropped 8%. contributing to the lower State heat Several comments suggest that TABLE 14.—NUCLEAR GENERATION input in 2000. Finally, commenters Michigan’s 2000 heat input was not VS. TOTAL UTILITY GENERATION FOR suggested that the modeling of unit representative because 2000 was a cool dispatch in the IPM does not accurately MICHIGAN IN 1995–2001 summer and that the State’s heat input reflect unit dispatching in Michigan therefore should be disregarded in because the IPM dispatches on a Total Ozone Season Utility considering the reasonableness of EPA’s national basis. Year nuclear Ozone Season 2007 heat input projection. The generation 41 (ii) Response (Mwh) Generation commenters seem to suggest that the (Mwh) fact that the summer was relatively cool EPA notes that Michigan’s heat input meant that electricity demand, and so has never actually exceeded EPA’s 2007 1995 ...... 8,779,412 38,175,367 heat input, were lower in Michigan in heat input projection. In 1998, 1996 ...... 12,708,112 41,024,588 2000. However, EPA notes that Michigan’s heat input (408,239,157 Michigan’s electricity demand in 1998 mmBtu) came close to (i.e., 0.4% below) although a minority—indicate that such decreases was 44,451,681 Mwh and has been EPA’s 2007 projection (410,058,589 and small increases can occur, EPA believes that its methodology should not be considered higher every year since 1998. In other mmBtu). Since 1998, Michigan’s heat unreasonable based on the recent State heat input. words, even though electricity demand input has declined each year. Moreover, while these long-term historical data has grown since 1998, heat input has Michigan’s 2001 heat input certainly show the potential for such decreases and small decreases, the data are otherwise of limited not. As for the comment that operational (374,318,406 mmBtu) was 8.7% below use in projecting future heat input. As explained in problems at the Monroe Power Plant EPA’s 2007 projection. Moreover, as Section V.D.6. of this notice, the electricity industry reduced Michigan’s heat input in 2000, discussed above, individual State heat has been undergoing deregulation of generation and EPA notes that Michigan’s heat input in input is quite variable and can decrease restructuring. As a result, trends in the past, as reflected in the data, may not continue in the 2001 continued to decrease from 2000, significantly over multi-year periods. In future. The IPM reflects these changes, and by using even though there was much less of a the past, Michigan’s annual heat input the IPM in developing heat input growth rates, EPA decrease in heat input from the Monroe has decreased significantly for the last has taken these changes into account. 40 Power Plant from 2000 to 2001. year, as compared to the first year, of It has been suggested that Cook nuclear generation has been taken up by out-of-state Furthermore, EPA believes that heat multi-year periods and, for example, affiliates of Cook and therefore that Cook’s input should not be evaluated on a decreased by 10.9% over the 9-year operational problems have not affected fossil-fired plant-by-plant basis, because declines in period 1973–1982 (comparable in length generation in Michigan. However, EPA has not heat input for one plant may well be to the 1998–2007 period).39 Ozone received specific information purporting to demonstrate this pattern. Indeed, the Michigan accompanied by increases in heat input Public Utility Commission has highlighted that the for another plant. For instance, while 39 EPA’s review indicates that eight out of the 32 resumption of normal operations by the Cook nine-year periods from 1960–2000 had a decrease, Nuclear facility increases both available generation the Monroe Power Plant had lower heat or an increase of no more than 0.4%, in annual heat and the ability to import power, which suggests that input in 2000 than it had in previous input (Docket # A–96–56, Item # XV–C–18, at 28), Cook and fossil-fired Michigan generators are years, heat input from the David E. Karn while 2 of the 19 nine-year periods from 1970–1998 interrelated. Summer 2001, Energy Appraisal, Plant in Michigan was significantly had a decrease, or an increase of no more than Michigan Public Utility Commission, http:// 0.4%, in ozone season heat input. (Docket # A–96– www.cis.state.mi.us/mpsc/reports/energy/ higher in 2000 than in previous years, 56, Item # XV–C–19, at 28). Since these periods— 01summer/electric.htm. and the amounts of the decrease in
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Monroe heat input and the increase in e. Missouri Missouri’s 2001 heat input exceeded EPA’s 2007 projection by 6.2%. The Karn heat input were about the same. (i) Comments Finally, EPA disagrees with the heat input decline occurred even A commenter noted that Missouri’s though, during this time, electricity comment that the modeling of unit average actual heat input growth rate for dispatch in the IPM is inaccurate for demand in Missouri increased from 1995–2000 exceeded EPA’s heat input 31,704,000 Mwh in 1999 to 33,519,000 Michigan because the IPM models the growth rate by about three times. The entire U.S. The IPM divided the U.S. Mwh in 2000 and 32,539,000 Mwh in commenter also noted that Missouri’s 2001. Further, as discussed above, EPA into multiple subregions (including a heat input in 1998 exceeded EPA’s 2007 intends to include only the eastern subregion comprising most of heat input projection for the State. Michigan). This allows the model to portion (the fine grid counties) of (ii) Response reflect both local dispatch patterns and Missouri in the NOX SIP Call. When the interstate nature of the electric grid. EPA notes that Missouri’s 1999 heat actual heat input for eastern Missouri input (335,273,139 mmBtu) exceeded for 2001 is compared with EPA’s For the reasons above, EPA rejects the EPA’s 2007 heat input projection recently proposed 2007 projection for commenters’ claims that EPA’s heat (309,316,824 mmBtu)by 8.4%. Since eastern Missouri, the difference between input growth rate and 2007 heat input 1999, Missouri’s heat input declined to the actual 2001 heat input (184,541,335 projection of Michigan are 332,332,587 mmBtu in 2000 and mmBtu) and the projected 2007 heat unreasonable. 329,668,165 mmBtu in 2001, but input (178,431,621 mmBtu) narrows to continued to exceed EPA’s projection. 3.4%.
TABLE 15.—HEAT INPUT (MMBTU) IN MISSOURI FOR 1995–2001
Outside Fine grid fine grid All counties counties counties
1995 ...... 163,698,735 120,078,167 283,776,902 1996 ...... 159,770,676 116,268,060 276,038,736 1997 ...... 176,843,306 121,262,736 298,106,042 1998 ...... 190,237,705 124,494,173 314,731,878 1999 ...... 200,802,706 134,470,433 335,273,139 2000 ...... 196,392,883 135,939,703 332,332,587 2001 ...... 184,541,335 145,126,830 329,668,165 Avg Annual Growth Rate 1995 to 2001 ...... 2.0 3.2 2.5
Moreover, as discussed above, input decreased 9.1% over the same within 7% of EPA’s 2007 heat input individual State heat input is quite period, 1984–1992. Thus, the fact that projections and within 1.3% in 1999. variable, is not necessarily correlated Missouri’s most recent heat input Commenters predicted that the State’s with electricity demand in the State, exceeded EPA’s 2007 projection does 2007 heat input level will be and can decrease significantly over not mean that the projection is 319,087,054 mmBtu, for existing units multi-year periods. In the past, unreasonable. based on the ‘‘historical trend’’ of heat Missouri’s annual heat input has For the reasons above, EPA rejects the input, and 395,216,765 mmBtu, based decreased significantly for the last year, commenter’s claims that EPA’s heat on ‘‘power generation output,’’ as as compared to the first year, of multi- input growth rate and 2007 heat input compared to EPA’s projection of year periods and, for example, projection of Missouri are unreasonable. 228,699,872 mmBtu. Commenters also decreased 11% over the 8-year period f. Virginia were concerned that EPA 1984–1992 (comparable in length to the underestimated Virginia’s new 2000–2007 period).42 Ozone season heat (i) Comments generation capacity. Virginia has 12,000 Commenters asserted that there are MW of potential new capacity at various 42 EPA’s review indicates that six out of the 33 various data omissions and errors in the stages of the permitting process. eight-year periods from 1960–2000 had a decrease in annual heat input, with a decrease of 8.4% or heat input data for baseline year (1995) According to the commenters, EPA’s more in one of these periods (Docket # A–96–56, and for subsequent years through 1999 estimate of new generation capacity is Item # XV–C–18, at 31), while two out of the 20 for Virginia, particularly as applied to underestimated by over 3,000 MW, and eight-year periods from 1970–1998 had a decrease independent power producers. the 5% set aside in the State’s EGU NOX in ozone season heat input, with a decrease of 8.4% or more in one of these periods (Docket # A–96– According to commenters, the lack of emission budget under the Section 126 56, Item # XV–C–19, at 31). Since these periods— heat input data for several of these Rule is inadequate to accommodate although a minority—indicate that such decreases facilities resulted in understated projected new capacity. can occur, EPA believes that its methodology baseline heat input and, in the Section should not be considered unreasonable based on (ii) Response the recent State heat input. Moreover, while these 126 Rule, in understated allowance long-term historical data certainly show the allocations for certain units, whose EPA notes that its 2007 heat input potential for such decreases, the data are otherwise allocations were based on 1995–1998 projection for Virginia (227,875,597 of limited use in projecting future heat input. As heat input. Commenters requested that mmBtu) has not been exceeded, though explained in Section V.D.6. of this notice, the electricity industry has been undergoing EPA correct the allowance allocations in Virginia’s 1999 heat input (225,665,092 deregulation of generation and restructuring. As a the Section 126 Rule. Commenters also mmBtu) was close to (i.e., 1% below) result, trends in the past, as reflected in the data, stated that there has been a substantial the 2007 projection. Since 1999, may not continue in the future. The IPM reflects these changes, and by using the IPM in developing increase in Virginia’s heat input Virginia’s heat input has declined, and heat input growth rates, EPA has taken these between 1995 and 2000 and that the in 2001 the State’s heat input changes into account. State’s heat input in 1997 and 1998 was (213,583,835 mmBtu) fell to 6.3% below
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EPA’s 2007 projection. Moreover, as August 3, 2001 NODA that EPA was not The commenters claimed that the discussed above, individual State heat seeking comments on the data used to unreasonableness of EPA’s methodology input is quite variable and can decrease calculate 1995 or 1996 baseline heat is further demonstrated by comparing significantly over multi-year periods. In input or on allowance allocations, (66 West Virginia’s heat input relative to the the past, Virginia’s annual heat input FR. 40616). EPA is therefore not total heat input for the NOX SIP Call has decreased significantly for the last addressing today the comments on region. With EPA’s heat input growth year, as compared to the first year, of Virginia’s 1996 baseline heat input, rates and 2007 heat input projections, multi-year periods and, for example, unit-specific allowance allocations, and the State was allotted only 5% of the decreased 38% over the 6-year period the set-aside for new units.45 However, regional heat input, but use of the 2001 1977–1983 (comparable in length to the data for subsequent years were not used and 2010 IPM heat input projections 2001–2007 period).43 Ozone season heat in calculating Virginia’s 1996 baseline show West Virginia with 6.9% and input decreased by 23.9% over 1978 heat input. EPA has incorporated the 6.4% respectively of regional heat input. and 1984.44 commenters’ data corrections for 1997– In addition, commenters noted that the Further, as discussed above, because 1999 for purposes of the Agency’s IPM run for 2007 projects heat input for heat input is quite variable, EPA review of Virginia’s heat input growth West Virginia that exceeds EPA’s 2007 believes that it is inappropriate to rates.46 heat input projection for the State. project long-term heat input growth to Commenters stated that year-to-year 2007 based on a short-term trend like g. West Virginia variation in heat input did not explain Virginia’s heat input growth for 1995– (i) Comments the difference between West Virginia’s 2000. With regard to comments current heat input and EPA’s 2007 heat Commenters argued that EPA’s concerning the new generation capacity input projection, which is lower. growth factor for West Virginia is that is at various stages of permitting in Commenters asserted that West Virginia inaccurate, technically unjustifiable, Virginia, projected new units do not has lower year-to-year variability in heat and significantly lower than the growth necessarily result, as discussed above, input than surrounding States. rates assigned to neighboring States. in increased State heat input. Finally, commenters contended that For the reasons above, EPA rejects the Commenters pointed to the discrepancy EPA’s heat input growth rates fail to commenters’ claims that EPA’s heat between actual heat input growth account sufficiently for new EGU units input growth rate and 2007 heat input during 1995–2000 in West Virginia in the State. According to the projection of Virginia are unreasonable. (1.84% a year) to EPA’s heat input commenters, while eight new EGUs EPA notes that the comments on growth rate of 0.25% a year. According with a combined generating capacity of Virginia’s 1996 baseline heat input and to commenters, extrapolating the 1.84% 5,833 MW have been planned and on unit-specific allowances allocations growth rate to 2007 would result in a committed for construction, EPA and the size of the set-aside for new 32.3% increase in heat input compared projected 1,049 MW of new natural gas units under the Section 126 Rule are to EPA’s projected 3% increase. fired units to West Virginia through outside the scope of the remand and Commenters also noted that West 2010. today’s notice. The Court remanded Virginia’s actual average heat input for EPA’s heat input growth rates and 2007 1998–2000 exceeds EPA’s 2007 heat (ii) Response heat input projections and did not input projection by 8%. Commenters EPA notes that West Virginia’s heat address or remand any issues asserted that in order for EPA’s input exceeded EPA’s 2007 heat input concerning the data used to calculate projections to be reasonably accurate, projection (358,117,926 mmBtu) State’s 1995 or 1996 baseline heat input. West Virginia’s heat input will have to beginning in 1997 when it exceeded In addition, the Court did not remand decrease as much as 6% over the next EPA’s 2007 projection by 1.9%. The any issues concerning the determination 6 years. State’s heat input peaked in 1999 of individual units’ allowance Further, commenters described West (391,592,231 mmBtu), exceeding EPA’s allocations or the size of the set-aside Virginia as an electricity exporter and 2007 projection by 9.3%. Since 1999, for new units. Consistent with the argued that the State can be expected to West Virginia’s heat input declined by Court’s remand, EPA explained in the have heat input increases commensurate 8% over the next 2 years, and the 2001 with rising national electricity demand. heat input (360,185,154 mmBtu) 43 EPA’s review indicates that ten out of the 32 Commenters pointed to the actual exceeded EPA’s 2007 projection by only nine-year periods from 1960–2000 had a decrease, 1.84% increase in ozone season heat 0.6%. Moreover, as discussed above, or an increase of no more than 1%, in annual heat input from 1995–2000, which they input (Docket # A–96–56, Item # XV–C–18, at 58), individual State heat input is quite while 7 of the 19 nine-year periods from 1970–1998 argued is comparable to the projected variable and can decrease significantly had a decrease, or an increase of no more than 1%, 1.8% increase in electricity demand over multi-year periods. In the past, in ozone season heat input (Docket # A–96–56, Item over the next 20 years in the National West Virginia’s annual heat input has # XV–C–19, at 58). Since these periods—although Energy Policy. a minority—indicate that such decreases and small decreased significantly for the last year, increases can occur, EPA believes that its as compared to the first year, of multi- methodology should not be considered 45 EPA notes that it previously solicited year periods and, for example, unreasonable based on the recent State heat input. corrections to baseline heat input data and decreased 5.5% over the 10-year period Moreover, while these long-term historical data responded to requested corrections through the certainly show the potential for such decreases and Technical Amendments in 1999 and 2000. EPA also 1981–1991 (comparable in length to the small increases, the data are otherwise of limited notes that, based on the data provided by 1997–2007 period) and decreased 10.9% use in projecting future heat input. As explained in commenters, the requested changes to 1996 heat over the 8-year period 1983–1991 Section V.D.6. of this notice, the electricity industry input would have very little impact on Virginia’s (comparable in length to the 1999–2001 has been undergoing deregulation of generation and EGU NOX emission budget. Virginia’s 1996 baseline 47 restructuring. As a result, trends in the past, as heat input (which was used to develop the budget) period) and 13% over 1984–1992. reflected in the data, may not continue in the would increase by 131 tons, and, with the future. The IPM reflects these changes, and by using application of EPA’s growth factor of 1.32 for 47 EPA’s review indicates that two out of the 31 the IPM in developing heat input growth rates, EPA Virginia, the State’s EGU NOX emission budget ten-year periods from 1960–2000 had a decrease in has taken these changes into account. would increase by 173 tons or 1%. annual heat input, with the largest decrease being 44 Monthly data was not available for the year 46 EPA similarly incorporated other specific data 5.5% (Docket # A–96–56, Item # XV–C–18, at 61), 1983, so a comparison of the period between 1977 corrections requested by commenters for other while four out of the 18 ten-years periods from and 1983 cannot be made. States for 1997 or later. Continued
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Ozone season heat input decreased is quite variable, as reflected in in higher 2007 projected heat input for 9.1% over 1982–1992.48 Thus, the fact significant decreases over multi-year some individual States, overall the that West Virginia’s heat input has periods. (See Tables 2 through 9 above.) alternative 2007 projections would not recently exceeded EPA’s 2007 heat Finally, as discussed above, because comport better than EPA’s 2007 input projection does not mean that heat input is quite variable, EPA projections with the actual heat input EPA’s projection is unreasonable. believes that it is inappropriate to data for the NOX SIP Call States. Further, while EPA agrees that West project long-term heat input growth to The first alternative methodology Virginia is a significant exporter of 2007 based on a short-term trend like would involve using heat input growth electricity, EPA does not believe that it West Virginia’s heat input growth for rates from OTAG. During the NO SIP necessarily follows that West Virginia’s 1995–2000. With regard to comments X Call rulemaking, EPA reviewed NO heat input will continue to grow. Since concerning the heat input, or percentage X emission projections by OTAG and less than a third of the electricity share of heat input, projected for West converted them into heat input generated in West Virginia is sold in Virginia by the IPM, EPA maintains that projections and growth rates. The EPA West Virginia, the ability to export the IPM is more accurate in predicting and OTAG heat input growth rates are electricity plays an important part in the the change in State heat input between compared in Table 16 below. amounts of both electricity generation modeled years than in pinpointing State and heat input in West Virginia. The heat input for a particular year. (See level of West Virginia’s exports in the section V.C.2 of this notice.) With regard TABLE 16.—COMPARISON OF OTAG future will depend on electricity supply to comments concerning the new gas- AND EPA STATE HEAT INPUT and demand in the regional electricity fired generation capacity that is planned GROWTH FACTORS 49 market. The commenters did not in West Virginia, projected new units do provide any information on future not necessarily result, as discussed OTAG EPA State growth growth electricity demand and supply outside above, in increased State heat input. rate rate of West Virginia and how they might For the reasons above, EPA rejects the affect future generation and heat input commenters’ claims that EPA’s heat AL ...... 1.21 1.10 in West Virginia. West Virginia’s heat input growth rate and 2007 heat input DC ...... 1.00 1.36 input declined over 8% during 1999– projection of West Virginia are DE ...... 1.15 1.27 2001 despite the fact that electricity unreasonable. GA ...... 1.03 1.13 IL ...... 1.08 1.08 sales increased 1.2% in the NOX SIP 10. No Heat Input Growth Rate IN ...... 1.12 1.17 Call region. Methodology Has Been Presented That While commenters provided a graph KY ...... 1.08 1.16 Would Have Results That Better to demonstrate that West Virginia’s heat MD ...... 1.05 1.35 Comport With Actual Heat Input MI ...... 0.94 1.13 input has been less variable than other As discussed in detail above, EPA MO ...... 1.05 1.09 States’ heat input, that graph covers NC ...... 1.10 1.21 only 1995–2000 and so fails to show the believes that the fact that a State’s recent NJ ...... 1.10 1.21 variability reflected by the heat input heat input exceeds a heat input NY ...... 1.08 1.05 decrease between 2000 and 2001. projection for the State for 2007 does OH ...... 1.04 1.07 Further, since the range of movement, not make the projection unreasonable. PA ...... 1.06 1.15 up and down, of lines on a graph can However, in light of the Court’s and SC ...... 1.03 1.43 vary depending on the range of the commenters’ concerns over cases where TN ...... 1.13 1.21 vertical and horizontal scales presented recent actual State heat input exceeded VA ...... 1.07 1.32 in the graph, the variability of the the 2007 projection, EPA decided to WV ...... 1.05 1.03 Region ...... 1.04 1.1 graphed parameter (here, State heat compare the heat input growth rates and input) cannot be determined simply by 2007 heat input projections under the 49 Throughout this notice the term growth looking at the graph. Commenters Agency’s methodology to those under rate (expressed in percent) has been used. In the alternative heat input growth the original rulemaking EPA actually used provided no other support for the claim growth factors (a factor used to multiply the of less variable heat input. Moreover, methodologies considered previously by baseline heat input). Growth factors can be the 1995–2001 ozone season data and EPA or discussed by commenters. In converted to growth rates by subtracting 1 and the 1960–2000 annual heat input data making this comparison, EPA focused expressing the value in terms of a percent for West Virginia show, contrary to the on how the 2007 projections compared (e.g. a growth factor of 1.08 is equivalent to a growth rate of 8%). In other words, increasing commenters, that the State’s heat input with actual heat input data to date for a baseline heat input by 8% growth rate is most of the NO X SIP Call States. EPA equivalent to multiplying the baseline heat 1970–1998 had a decrease in ozone season heat excluded Connecticut, Massachusetts, input by a 1.08 growth factor. input, with the largest decrease being 9.1% (Docket and Rhode Island from the comparison # A–96–56, Item # XV–C–19, at 61). Since these of the growth rate methodologies Focusing first on the States for which periods—although a minority—indicate that such EPA’s heat input growth rates have been decreases can occur, EPA believes that its because they entered into a February methodology should not be considered 1999 Memorandum of Understanding in disputed by commenters, EPA notes that unreasonable based on the recent State heat input. which they reallocated their NOX EPA’s State heat input growth rate is Moreover, while these long-term historical data emission budgets for EGUs, and higher than OTAG’s for three States certainly show the potential for such decreases, the (Georgia, Michigan, and Virginia), lower data are otherwise of limited use in projecting effectively reallocated their projected future heat input. As explained in Section V.D.6. of heat input, among the three States. This for three States (Alabama, Missouri, and this notice, the electricity industry has been agreement, which was implemented in West Virginia) and the same for one undergoing deregulation of generation and State (Illinois). Further, as shown in restructuring. As a result, trends in the past, as their SIPs approved on December 27, reflected in the data, may not continue in the 2000, rendered moot any potential Table 19 below, the 2007 heat input future. The IPM reflects these changes, and by using issues concerning the 2007 heat input projection based on OTAG’s growth the IPM in developing heat input growth rates, EPA projections used to calculate their rates would be exceeded by actual State has taken these changes into account. original NOX emission budgets. As heat input in a recent year for ten 48 The periods for decreasing ozone season heat jurisdictions, as compared to seven input obviously differ slightly from the periods for discussed below, EPA found that, while decreasing annual heat input. the alternative methodologies resulted jurisdictions when 2007 projections are
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based on EPA’s growth rates.50 In growth factors based on actual 1996 data TABLE 17.—COMPARISON OF 1996– addition, using OTAG’s heat input and 2007 IPM projections. These growth 2007 STATE GROWTH RATES AND growth rates, the overall heat input rates, which would be applied to 1996 EPA HEAT INPUT GROWTH RATES growth rate for the entire NOX SIP Call heat input, are set forth in Table 17 region would be less than the overall below. Commenter EPA growth rate using EPA’s growth rates, A second alternative methodology State growth growth and the heat input projections for 2007 rate rate for the region would be lower. In that EPA considered in the NOX SIP Call summary, using OTAG’s growth rates, rulemaking and that a commenter AL ...... 1.07 1.10 rather than EPA’s heat input growth proposed is use of a single, regionwide DE ...... 1.53 1.36 rates would result in more States heat input growth factor based on the DC ...... 0.40 1.27 recently exceeding their 2007 heat input 2001–2010 heat input growth rate under GA ...... 1.11 1.13 projections and lower heat input for the the IPM (i.e., 1.15%). This would result IL ...... 1.25 1.08 region as a whole.51 in the same projected heat input for the IN ...... 1.09 1.17 KT ...... 1.13 1.16 A second alternative methodology NOX SIP Call region as a whole, but in MD ...... 1.08 1.35 that EPA considered in the NOX SIP Call a different apportioning of that heat rulemaking and that a commenter input among the States in the region. MI ...... 1.24 1.13 proposed is use of a single, regionwide With regard to the States whose heat MO ...... 1.33 1.09 NJ ...... 2.3 1.21 heat input growth factor based on the input is disputed by commenters, EPA’s 2001–2010 heat input growth rate under NY ...... 1.07 1.21 State heat input growth rate is higher NC ...... 1.33 1.05 the IPM (i.e., 1.15%). This would result than under this second alternative for in the same projected heat input for the OH ...... 1.02 1.07 four States (Georgia, Illinois, Michigan, PA ...... 1.10 1.15 NOX SIP Call region as a whole, but in and Virginia) and lower in three States a different apportioning of that heat SC ...... 1.45 1.43 (Alabama, Missouri, and West Virginia). input among the States in the region. TN ...... 1.11 1.21 Further, as shown in Table 18 below, With regard to the States whose heat VA ...... 1.47 1.32 input is disputed by commenters, EPA’s the 2007 heat input projection based on WV ...... 1.35 1.03 State heat input growth rate is higher the single, regionwide growth rate than under this second alternative for would be exceeded in a recent year by With regard to the States whose heat four States (Georgia, Illinois, Michigan, actual State heat input for nine input is disputed by commenters, EPA’s and Virginia) and lower in three States jurisdictions, as compared to seven State heat input growth rate is higher (Alabama, Missouri, and West Virginia). jurisdictions when 2007 projections are than under this third alternative for two Further, as shown in Table 18 below, based on EPA’s growth rates. Thus, States (Alabama and Georgia) and lower the 2007 heat input projection based on using this second alternative in five States (Illinois, Michigan, the single, regionwide growth rate methodology, rather than EPA’s Missouri, Virginia, and West Virginia). would be exceeded in a recent year by methodology, would result in additional Further, as shown in Table 18 below, actual State heat input for nine States exceeding their 2007 heat input the 2007 heat input projection based on jurisdictions, as compared to seven projections.52 the third alternative methodology would jurisdictions when 2007 projections are During the NOX SIP Call rulemaking, be exceeded by actual State heat input based on EPA’s growth rates. Thus, EPA received comment on a third in a recent year for seven jurisdictions. using this second alternative alternative methodology to project heat Thus, using this third alternative methodology, rather than EPA’s input. The commenter suggested using methodology would result in the same methodology, would result in additional growth factors based on actual 1996 data number of jurisdictions exceeding their States exceeding their 2007 heat input and 2007 IPM projections. These growth 2007 heat input projections in a recent projections.52 rates, which would be applied to 1996 year as under EPA’s methodology.53 During the NOX SIP Call rulemaking, EPA received comment on a third heat input, are set forth in Table 17 alternative methodology to project heat below. input. The commenter suggested using
TABLE 18—STATES THAT IN A RECENT YEAR HAVE EXCEEDED 2007 HEAT INPUT UNDER DIFFERENT PROJECTION METHODS
OTAG growth Uniform 1996–2007 State EPA method rate growth rate growth rate
AL ...... Exceeded Exceeded Exceeded Exceeded DC 54 ...... Exceeded Exceeded Exceeded Exceeded DE ...... Exceeded
50 While EPA’s 2007 heat input projection was in that they are not based on consistent methodology because this alternative assumes the exceeded by New York’s 1999 heat input, no assumptions. same amount of heat input growth for each State, commenter disputed the heat input growth rate for 52 Further, as a conceptual matter, EPA considers a phenomenon that is demonstrably unrealistic, that State. Moreover, the State’s heat input has this alternative less reasonable than EPA’s based on both historical experience and model decreased since 1999 and is now well below EPA’s methodology because this alternative assumes the projections. same amount of heat input growth for each State, projection. In fact, heat input in every year other 53 a phenomenon that is demonstrably unrealistic, As a conceptual matter, EPA considers this than 1999 has been lower than the actual heat input based on both historical experience and model alternative less reasonable than EPA’s methodology in 1995. projections. because it calculates growth between an actual year 51 As discussed in section V.C.3 of this notice, 52 Further, as a conceptual matter, EPA considers of heat input (1996) and a modeled year of heat OTAG’s projections also are fundamentally flawed this alternative less reasonable than EPA’s input. See section V.C.2 of this notice.
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TABLE 18—STATES THAT IN A RECENT YEAR HAVE EXCEEDED 2007 HEAT INPUT UNDER DIFFERENT PROJECTION METHODS—Continued
OTAG growth Uniform 1996–2007 State EPA method rate growth rate growth rate
GA ...... Exceeded Exceeded Exceeded Exceeded IL ...... Exceeded Exceeded Exceeded ...... IN ...... Exceeded KY ...... Exceeded ...... MD ...... Exceeded Exceeded ...... MI ...... Exceeded ...... MO ...... Exceeded Exceeded Exceeded ...... NC ...... NJ ...... Exceeded ...... NY ...... Exceeded Exceeded ...... Exceeded OH ...... Exceeded PA ...... SC ...... Exceeded ...... TN ...... VA ...... Exceeded ...... WV ...... Exceeded Exceeded ...... 54 EPA notes that the District of Columbia is unique in that it has only six units and so its heat input is particularly variable.
Finally, some commenters suggested may well change. As discussed above, 1. Notice-and-Comment Rulemaking using more recent data to develop 2007 this already occurred during 1998–2001, Commenters stated that EPA was heat input projections. One such when the set of States with current, required to have completed today’s approach continues to use EPA’s heat actual heat input exceeding or close to response to the Court’s remand through input growth rates, but applies them to 2007 projected heat input changed notice-and-comment rulemaking. the 2000 actual State heat input data, somewhat almost every year. EPA EPA believes that its procedure is instead of actual data representing the believes that this demonstrates both that appropriate for today’s response to the higher of a State’s 1995 or 1996 heat the exceedance in a particular year of a Court’s remand. The response to remand input. While EPA believes that it was State’s 2007 heat input projection does does not entail promulgation of a new appropriate to use, to the extent feasible, not make the projection unreasonable or revised rule reflecting new or revised the most up-to-date heat input data and that commenters failed to heat input growth rates. Rather, it available during the NO SIP Call and X demonstrate that EPA’s heat input involves a clearer explanation, based on Section 126 rulemakings in order to growth methodology is unreasonable. the existing record and confirmed by project 2007 heat input, the 2000 heat supplemental information, of the same input data that the commenter suggests E. Procedural Issues heat input growth rates that EPA using became available in 2001 and was, previously used in the NO X SIP Call, the obviously, not available when EPA As a procedural matter, EPA is Section 126 Rule, and the Technical issued the NOX SIP Call (1998), the responding in today’s notice to the Amendments. Under these Section 126 Rule (1999), and the Court’s remand in the Section 126 and circumstances, notice-and-comment Technical Amendments (2000). EPA the Technical Amendments cases of the rulemaking is not required. See believes that the Agency cannot heat input growth rate issue by generally National Grain & Feed Ass’n, reasonably be required to modify the providing a clearer explanation of the Inc. v. OSHA, 903 F.2d 308 (5th Cir., heat input growth rate projections or Agency’s methodology. Before issuing 1990). other aspects of the NOX SIP Call and today’s notice, EPA outlined its A notice-and-comment rulemaking Section 126 Rule simply to use future proposed response in a notice in the would have been appropriate had the data that inevitably becomes available Federal Register, i.e., the August 3, Court vacated the rulemaking with with the passage of time. Requiring EPA 2001 NODA (66 FR 40609–16). In that respect to the heat input growth rate to do so would be a prescription for NODA, EPA relied largely on the issue, but the Court did not do so in endless rulemaking. existing record, but also pointed to new either the Section 126 Decision or the Moreover, in this case, the data information that EPA placed in the Technical Amendments Decision. involved, i.e., State heat input, are quite docket at that time. EPA received some Indeed, in the Section 126 case, the variable from year to year. It therefore 30 comments on the NODA. EPA then Court denied a post-decision procedural seems likely that, as subsequent years of developed additional new information motion specifically requesting such a actual State heat input data become and placed that in the docket through a vacatur. available, some of the States’ heat input second NODA dated March 11, 2002 (67 In any event, as a practical matter, an may increase in one particular year opportunity to comment was afforded FR 10844–45). In the March 11, 2002 more rapidly than reflected in the heat interested parties. By the August 3, 2001 NODA, EPA also noted that some input growth rates and result in heat NODA, EPA placed in the docket additional information might be put in input for that year exceeding the new additional factual information that it 2007 heat input projections under this the docket later. EPA did so at various compiled in the course of responding to fourth alternative methodology. The fact times after March 11, 2002. the remand, and EPA allowed a 30-day is that, as the latest year of actual State Commenters raised several procedural comment period on that additional heat input data advances, the set of issues concerning EPA’s response to the information. Many parties commented, States with current, actual heat input Court’s remand of the heat input growth and EPA has responded to those exceeding 2007 projected heat input rate issue. comments in today’s notice. The August
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3, 2001 NODA also outlined EPA’s a rulemaking establishing compliance However, as discussed in section preliminary explanation in response to requirements under section 126(c). V.D.8 of this notice, a few comments by the remand, interested parties However, EPA does not believe that some other commenters are outside the commented on that explanation, and term should be read so broadly as to scope of the remand and of today’s EPA responded. Further, by the March include today’s response to the remand. response to remand. EPA does not 11, 2002 NODA, EPA again placed Reading the term ‘‘action’’ so broadly regard the reconsideration request to additional factual information compiled would require that every remand apply to these comments. in the course of responding to the response involving section 126 meet the remand. As discussed above, two procedural requirements of section List of Subjects 307(d), while a remand response comments were submitted questioning 40 CFR Part 51 whether there was time for submission involving any other provision of comments on the new information referenced in section 307(d)(1) would Environmental protection, and questioning how the new data not have to meet such requirements so Administrative practice and procedure, related to the response to remand. EPA long as the response was not a Air pollution control, Intergovernmental ‘‘promulgation’’ or ‘‘revision’’ of a thereafter explained to the commenters relations, Ozone, Reporting and regulation. EPA considers such a unique and the public the relevance of the recordkeeping requirements. documents and stated that the Agency result for section 126 to be anomalous would delay issuance of the final and therefore rejects that interpretation 40 CFR Part 52 response to the remands until on or of the term ‘‘action’’ in section 307(d)(1)(N). Air pollution control, Ozone, about April 17, 2001 and would EPA also notes that, in today’s Reporting and recordkeeping consider timely submitted comments. response, the Agency is not taking any requirements. EPA also received a third comment ‘‘action’’ under section 126. 55 Rather, stating that the data referenced in the EPA is simply explaining more clearly 40 CFR Part 96 March 11, 2002 NODA were highly the basis for the ‘‘action’’ that it took in Administrative practice and germane and supported EPA’s heat the section 126 Rule issued in January input growth rate methodology. procedure, Air pollution control, 2000, i.e., the final rulemaking that Nitrogen oxides, Ozone, Reporting and A commenter claimed that section established compliance requirements, recordkeeping requirements. 307(d)(1) of the CAA requires that EPA including State NOX budgets for EGUs. provide a comment period and hold a 40 CFR Part 97 hearing on its response to the remand. 2. Petition to Reconsider EPA disagrees. Some commenters requested that EPA Administrative practice and should treat any of their comments that Paragraph (1) of subsection (d) of procedure, Air pollution control, EPA considered to be outside the scope section 307 provides that the procedural Intergovernmental relations, Nitrogen of today’s notice as petitions to requirements found in subsection (d) oxides, Ozone, Reporting and reconsider and that EPA should respond apply to the items listed in recordkeeping requirements. to such petitions at the same time that subparagraphs (A) through (U). Each of it issues today’s notice. Because EPA is Dated: April 23, 2002. these items refers to the ‘‘promulgation’’ responding on the merits to the Christine T. Whitman, (and, in almost all cases, the ‘‘revision’’) comments submitted by these Administrator. of a regulation or requirement under a commenters, this request is moot.56 provision of the CAA, except for [FR Doc. 02–10404 Filed 4–30–02; 8:45 am] BILLING CODE 6560–50–P subparagraph (N), which refers to an 55 Under Federal Register drafting requirements, ‘‘action of the Administrator under EPA must have an ‘‘Action’’ caption in every section 126,’’ and subparagraph (U), document published in the Federal Register. The Compliance Supplement Pool, which is a pool of which is a catch-all category that refers use of caption at the beginning of today’s notice extra allowances established by EPA for each State does not make the notice an ‘‘action’’ under Section to ‘‘such other actions as the for use in the first 2 years of the NOX SIP Call and 307(d)(1)(N). The ‘‘Action’’ caption is required for the section 126 Rule by sources that may not be able Administrator may determine.’’ EPA all notices, including policy statements and to install NO emissions in time. Not only is this interpretations for which public notice and X believes that the term ‘‘action’’ in claim outside the scope of this notice, but also the comment and a public hearing are clearly not subparagraph (N) is intended to cover required. Court has already ruled on and upheld EPA’s both a grant or denial of a request for a 56 One of these commenters argued that EPA imposition of the cap on the Compliance finding under section 126(b), as well as should remove any limit on the size of the Supplement Pool. See Michigan v. EPA, 213 F.3d at 694.
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Part V
Department of the Interior Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948 West Virginia Regulatory Program; Final Rule
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DEPARTMENT OF THE INTERIOR of comments, and the conditions of the Regulations, Code of State Regulations approval in the January 21, 1981, (CSR) 38–2. Enrolled Committee Office of Surface Mining Reclamation Federal Register (46 FR 5915). You can Substitute for House Bill 2663 and Enforcement also find later actions concerning the (Administrative Record Number WV– West Virginia program and program 1210) that passed the Legislature on 30 CFR Part 948 amendments at 30 CFR 948.10, 948.12, April 14, 2001, and was signed into law [WV–088–FOR] 948.13, 948.15, and 948.16. by the Governor on May 2, 2001, authorized WVDEP to promulgate the II. Submission of the Amendments West Virginia Regulatory Program regulatory revisions. A notice (66 FR By letter dated November 30, 2000 28682) announcing receipt and a public AGENCY: Office of Surface Mining (Administrative Record Number WV– comment period on the amendment was Reclamation and Enforcement, Interior. 1189), West Virginia sent us an published in the Federal Register on ACTION: Final rule; approval of amendment to its program, under May 24, 2001 (Administrative Record amendment. SMCRA (30 U.S.C. 1201 et seq.). The Number WV–1213). The amendments amendment includes numerous that we are deciding here were SUMMARY: We, the Office of Surface attachments and was submitted in submitted by WVDEP to address the Mining Reclamation and Enforcement response to the following required required amendments codified at 30 (OSM), are approving proposed program amendments: 30 CFR 948.16(a), CFR 948.16(xx), (qqq), (zzz), (ffff), amendments to the West Virginia (dd), (ee), (oo), (tt), (xx), (mmm), (nnn), (gggg), (hhhh), (jjjj), (nnnn), and (pppp). regulatory program (the ‘‘West Virginia (ooo), (qqq), (sss), (vvv)(1), (2), (3), and The comment period closed on the program’’) authorized under the Surface (4), (www), (xxx), (zzz), (aaaa), (bbbb), program amendment on June 25, 2001. Mining Control and Reclamation Act of (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk), We received comments on the State’s 1977 (SMCRA or the Act). The (llll), (mmmm), (nnnn), (oooo), and responses to the required amendments amendments consist of the State’s (pppp). noted above from two Federal agencies. responses to several required program However, in a previous decision dated We are also including in this final amendments codified in the Federal October 1, 1999 (64 FR 53200), we rule document our decisions on the regulations at 30 CFR 948.16. The found that the State had satisfied the State’s responses to required program amendments are intended to revise the required amendment codified at 30 CFR amendments that were submitted to us West Virginia program to be consistent 948.16(mmm) and, therefore, it was as part of a separate program with the corresponding Federal removed. amendment package dated November regulations and SMCRA. In another previous decision dated 28, 2001. We will address the remainder EFFECTIVE DATE: May 1, 2002. August 18, 2000 (65 FR 50409), we of the November 28, 2001, amendment found that the State had satisfied the FOR FURTHER INFORMATION CONTACT: Mr. in a separate final rule document at a Roger W. Calhoun, Director, Charleston required amendments codified at 30 later date. The amendments that we are Field Office, 1027 Virginia Street East, CFR 948.16(www) and (xxx), and, deciding here were submitted by Charleston, West Virginia 25301. therefore, we removed them. WVDEP to address the required We announced receipt of the Telephone: (304) 347–7158, Internet amendments codified at 30 CFR proposed amendment in the January 3, address: [email protected]. 948.16(kkkk), (llll), and (mmmm). A 2001, Federal Register (66 FR 335–340). SUPPLEMENTARY INFORMATION: notice (67 FR 4689–4692) announcing In the same document, we opened the receipt and a public comment period on I. Background on the West Virginia Program public comment period and provided an II. Submission of the Amendments the program amendment package was III. OSM’s Findings opportunity for a public hearing or published in the Federal Register on IV. Summary and Disposition of Comments meeting on the amendment’s adequacy January 31, 2002 (Administrative V. OSM’s Decision (Administrative Record Number WV– Record Number WV–1267). The public VI. Procedural Determinations 1194). We did not hold a public hearing comment period closed on March 4, or meeting, because no one requested 2002. We received comments on the I. Background on the West Virginia one. The public comment period ended Program required amendments noted above from on February 2, 2001. However, a public three Federal agencies. Section 503(a) of the Act permits a commenter requested an extension of On January 15, 2002 (Administrative State to assume primacy for the the public comment period, and to Record Number WV–1271), we met with regulation of surface coal mining and accommodate that request we extended the State to discuss the required reclamation operations on non-Federal the comment period to February 28, amendments codified at 30 CFR 948.16. and non-Indian lands within its borders 2001. We received comments from one In that meeting, WVDEP agreed to by demonstrating that its State program environmental organization and three provide us with further clarification on includes, among other things, ‘‘a State Federal agencies. how and when they would provide law which provides for the regulation of We are also including in this final additional information, amend policies surface coal mining and reclamation rule document our decisions on the set forth in its Permit, Inspection and operations in accordance with the State’s responses to required program Technical Handbooks, or propose requirements of the Act * * *; and amendments that were submitted to us rulemaking that would resolve specific rules and regulations consistent with as part of a separate program issues. regulations issued by the Secretary amendment package dated May 2, 2001. By letter dated February 26, 2002, pursuant to the Act.’’ See 30 U.S.C. 1253 We will address the remainder of the WVDEP sent us a status report regarding (a)(1) and (7). On the basis of these May 2, 2001, amendment in a separate the required program amendments criteria, the Secretary of the Interior final rule document at a later date. In a codified at 30 CFR 948.16 conditionally approved the West letter dated May 2, 2001 (Administrative (Administrative Record Number WV– Virginia program on January 21, 1981. Record Number WV–1209) West 1276). The report included 14 You can find background information Virginia Department of Environmental attachments, and outlined actions taken on the West Virginia program, including Protection (WVDEP) submitted revisions in an attempt to satisfy the required the Secretary’s findings, the disposition to its Surface Mining Reclamation program amendments. The actions
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include proposed policies, rules and the Division of Environmental Protection Productivity: As discussed in the May laws, form changes, and referrals to shall be responsible for all blasting 23, 1990, Federal Register, the State’s legal staff. Several actions include operations’’. A letter dated August 30, 1994 regulations at Subsection 9.3(f) required further justification of why WVDEP from James Blankenship (OSM) to David C. the measurement of productivity, but Callaghan (WVDEP Director) stated ‘‘required considers the State program to be amendment 30 CFR 948.16(a) will be they did not establish productivity sufficient. WVDEP stated that the law removed because the state has removed the success standards for grazing land, and rule changes would be proposed offending language’’. (Federal counterpart pasture land and cropland (55 FR during the 2002 regular legislative 816.61(c)) 21322). In addition, the State failed to session, and that none of the proposed In the above referenced August 30, select and submit its productivity revisions would be implemented 1994, letter (Administrative Record sampling technique(s) to be used in without OSM approval. Number WV–934) we acknowledged evaluating productivity. WVDEP submitted a policy on By letter dated March 8, 2002, that the West Virginia program does February 26, 2002, addressing this issue. WVDEP sent us revisions to two of the require all blasting operations to be The policy was revised and resubmitted attachments it had sent us in its conducted by a certified blaster. Revised February 26 letter (Administrative to us on March 8, 2002, as Attachment CSR 38–2–6.1 provides that ‘‘a blaster 1. The policy provides that the Record Number WV–1280). The March certified by the Department of 8, 2002, letter also included one new productivity standards for grazing land Environmental Protection shall be and hayland will be based upon attachment intended to address the responsible for all blasting operations required amendment at 30 CFR determinations for similar map units as including the transportation, storage published in the productivity tables in 948.16(sss). and use of explosives within the permit In the March 25, 2002, Federal NRCS soil surveys for the county or area in accordance with the blasting Register (67 FR 13577–13585) we from average county yields recognized plan.’’ We find, therefore, that the reopened the comment period to by the U.S. Department of Agriculture requirement of 30 CFR 948.16(a) is provide the public an opportunity to (USDA). We note that ‘‘The West satisfied and can be removed. Virginia Bulletin,’’ which is published review and comment on the topics 2. Revegetation. 30 CFR 948.16(dd) discussed in the January 15, 2002, annually by the West Virginia provides that West Virginia must submit Agricultural Statistics Service, in meeting; WVDEP’s February 26 and proposed revisions to Subsection CSR March 8, 2002, submittals; and related cooperation with the USDA, lists 38–2–9.3 of its Surface Mining average county yields for various information that we provided to WVDEP Reclamation Regulations or otherwise (Administrative Record Number WV– principal crops throughout the State. propose to amend its program to The yields for grazing land or hayland 1285). The comment period closed on establish productivity success standards April 9, 2002. We received comments will be measured in material produced for grazing land, pasture land and per acre or animal units supported. The from one industry group and two cropland; require use of the 90 percent Federal agencies. success of production shall be equal to statistical confidence interval with a or greater than that of the standard III. OSM’s Findings one-sided test using a 0.10 alpha error obtained from the tables. The evaluation Following are the findings we made in data analysis and in the design of methods for productivity to be used are pursuant to SMCRA and the Federal sampling techniques; and require that described in Section 1 of ‘‘Technical regulations at 30 CFR 732.15 and 732.17 revegetation success be judged on the Guides of Reference Areas and concerning the proposed amendments basis of the vegetation’s effectiveness for Technical Standards for Evaluating to the West Virginia program. We are the postmining land use and in meeting Surface Mine Vegetation in OSM approving these amendments and the general revegetation and reclamation Regions I and II,’’ by Robert E. Farmer, removing the required amendments. plan requirements of Subsections 9.1 Jr. et al., OSMlJ5701442/TV–54055A, Any revisions that we do not and 9.2. Furthermore, West Virginia 1981, U.S. Department of the Interior, specifically discuss below concern must submit for OSM approval its Office of Surface Mining Reclamation nonsubstantive wording or editorial selected productivity and revegetation and Enforcement. changes. sampling techniques to be used when CSR 38–2–9.3.f of the State’s existing We are presenting our findings below evaluating the success of ground cover, Surface Mining Reclamation in the following format: a description of stocking or production as required by 30 Regulations, which establishes the the required amendment codified at 30 CFR 816.116 and 817.116. success standard for grazing land and CFR 948.16; followed by a quotation or State Response pasture land, provides where the a description of the State’s response to postmining land use requires legumes the required amendment; and our Productivity: The WVDEP has developed a and perennial grasses, the operator shall policy (Attachment 1) that will use finding. achieve at least a ninety (90) percent productivity standards developed by the ground cover and a productivity level as 1. Blasting. 30 CFR 948.16(a) provides Natural Resources Conservation Service that West Virginia must submit copies (NRCS) or other publications of the United set forth in the (Technical) Handbook of proposed regulations or otherwise States Department of Agriculture. These during any two years of the propose to amend its program to standards will be compared to yields responsibility period except for the first provide that all surface blasting obtained from the particular site. year. The State does not intend to revise operations (including those using less Ground cover: WVDEP has reviewed the the Technical Handbook that is than five pounds and those involving modified Rennie-Farmer Method in addition referenced in its rules. Instead, the surface activities at underground mining to methods used in other states and has proposed policy will become part of the developed a policy (Attachment 1) which operations) shall be conducted under Permitting or Inspector Handbook. references section 3 of ‘‘Technical Guides of According to the policy, the the direction of a certified blaster. Reference Areas and Technical Standards for productivity success standard for State Response Evaluating Surface Mine Vegetation in OSM Regions I and II,’’ by Robert E. Farmer, Jr. et cropland will be determined using This required program amendment should al., OSM_J5701442/TV–54055A, 1981, U.S. yields for reference crops from unmined be removed. Current language in [subsection] Department of the Interior, Office of Surface lands. Reference crop yields shall be 6.1 of the rules states ‘‘a blaster certified by Mining Reclamation and Enforcement. determined from the current yield
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records of representative local farms in USDA. A copy of ‘‘West Virginia Ground Cover: As discussed in the the surrounding area or from the average Bulletin 2001, No. 32’’ was provided to May 23, 1990, Federal Register (55 FR county yields recognized by the U.S. WVDEP on February 6, 2002. NRCS 21322), the State program did not Department of Agriculture. The success officials say that some soil surveys lack require that revegetation success be of production shall be equal to or greater sufficient information to rate the yields judged on the basis of the vegetation’s than that of the reference crop from for a particular soil type, especially in effectiveness for the postmining land unmined areas. Evaluation methods for certain mining counties, and most yield use and in meeting the general productivity to be used are described in information is based on higher levels of revegetation and reclamation plan Section 1 of the ‘‘Technical Guides of management. Although the WV Bulletin requirements of Subsections 9.1 and 9.2. Reference Areas and Technical lacks yield information based on soil Furthermore, the State has failed to Standards for Evaluating Surface Mine type, NRCS concurs that a combination submit for OSM approval its selected Vegetation in OSM Regions I and II,’’ by of reports may be best to use, especially revegetation sampling techniques to be Robert E. Farmer, Jr. et al., when the soil survey states that the soil used when evaluating ground cover. OSMlJ5701442/TV–54055A, 1981, is too variable to rate. Nevertheless, the Initially, WVDEP submitted its U.S. Department of the Interior, Office lack of reference to specific publications modified Rennie-Farmer Method as its of Surface Mining Reclamation and does not render the proposed policy less preferred method for evaluating the Enforcement. effective than the Federal requirements. success of ground cover. After further The policy further provides that the When submitting permit applications or evaluation of that method and other company (permit applicant) is permit modifications for existing State methods, WVDEP submitted a responsible for providing WVDEP with operations with agricultural postmining policy on February 26, 2002, and copies of the productivity tables and/or land uses, applicants will be expected to revised it on March 8, 2002, which data used to determine reference crop include productivity data from the most provides that ground cover success shall yield. Where the USDA or other current NRCS soil surveys and USDA be based on the Rennie and Farmer agricultural data for productivity does publications for WVDEP review and technique described in Section 3 of the not exist for a particular county, the approval. The applicant will be required ‘‘Technical Guides of Reference Areas applicant will work with WVDEP and to consult with WVDEP, NRCS and and Technical Standards for Evaluating USDA to develop standards for the USDA to verify existing information or Surface Mine Vegetation in OSM proposed area. to develop data when production data is Regions I and II,’’ by Robert E. Farmer, CSR 38–2–9.3.f.2 provides that for insufficient or missing for a particular Jr. et al., OSMlJ5701442/TV–54055A, areas to be used for cropland, the county or area. 1981, U.S. Department of the Interior, success of crop production from the CSR 38–2–9.3.d and 9.3.e provide that Office of Surface Mining Reclamation mined area shall be equal to or greater when evaluating vegetative success, and Enforcement. Section 3 is entitled, than that of the approved standard for WVDEP must use a statistically valid ‘‘An Inventory System for Evaluating the crop being grown over (the) last two sampling technique with a 90 percent Revegetation of Reclaimed Surface (2) consecutive seasons of the five statistical confidence interval. The Mines to Forest Resource Conservation growing season liability period. The proposed policy requires the use of a Standards,’’ and contains a statistical proposed policy clarifies that the sampling technique for measuring technique for evaluating ground cover success standard for cropland is based productivity as set forth in Section 1 of and stockings. on yields for reference crops from the ‘‘Technical Guides of Reference CSR 38–2–9.3.d and 9.3.e. provide ‘‘unmined’’ lands. The policy further Areas and Technical Standards for that when evaluating vegetative success, provides that reference crop yields shall Evaluating Surface Mine Vegetation in WVDEP must use a statistically valid be based on current yield records of OSM Regions I and II.’’ Section 1 is sampling technique with a 90 percent representative local farms in the entitled, ‘‘Planning and Evaluating statistical confidence interval. Ground surrounding area or from the average Agricultural Land Uses on Surface- cover, production, or stocking can only county yields. The existing rules do not Mined Areas.’’ be considered equal to the approved provide for the use of reference areas in As mentioned above, 30 CFR success standard when they are not less evaluating the productivity success of 948.16(dd) requires the establishment of than 90 percent of the success standard. cropland. As proposed in the policy, an productivity success standards for When evaluating vegetative success, an operator will be required to use grazing land, pastureland, and cropland. inspection report must be filed by the reference areas in the vicinity of the Because the proposed policy establishes inspector. Only after the applicable proposed mining operation or average productivity success standards for success standards have been met and county yield records in setting the grazing land, pastureland and cropland documented can Phase II or Phase III success standard when cropland is the that are no less effective than those bond release be approved by the State. approved postmining land use. To standards set forth in 30 CFR 816.116 Because State rules at CSR 38–2–9.3 ensure that management levels and and 817.116, this portion of the required and the proposed policy require the use other factors are given proper amendment has been satisfied and can of a statistical sampling technique for consideration, we recommend that yield be removed. In addition, because State measuring ground cover and that data from both the reference areas and rules at CSR 38–2–9.3.d and 9.3.e measurement technique requires the use county records be given equal weight require the use of a statistically valid of a 90-percent statistical confidence when establishing productivity success sampling technique with a 90 percent interval (i.e., one-sided test with a 0.10 standards for cropland. statistical confidence interval and the alpha error), that portion of the required We encourage WVDEP to cite in its proposed policy provides for the use of amendment at 30 CFR 948.16(dd) has rules and/or policy the specific a productivity sampling technique that been satisfied and can be removed. productivity standards developed by uses a 90-percent statistical confidence The West Virginia program at CSR NRCS and the other publications of the interval (i.e., one-sided test with a 0.10 38–2–9.1.a. and 9.1.d. provide for the USDA that the State plans to use. We alpha error) for measuring grazing land, establishment of a diverse, effective and also recommend the use of the ‘‘West pastureland and cropland, that portion permanent vegetative cover of the same Virginia Bulletin’’ published by the WV of the required amendment has been seasonal variety native to the area of Department of Agriculture and the satisfied and can be removed. disturbed land, or introduced species
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that are compatible with the approved comments of February 9, 2001 WVDEP further stated that the criteria postmining land use. The requirement (Administrative Record Number WV– for both the slope and the rocky or that the established vegetation be 1203), we had several discussions with flooded land were based on NRCS compatible with the approved NRCS officials about these issues. literature. Of all the soils identified in postmining land use satisfies the Through these discussions we learned the ‘‘West Virginia’s Prime Farmland requirement at 30 CFR 948.16(dd) that NRCS does not have soil surveys Soil Mapping Units’’ document, not one which states that revegetation must be completed for all counties in West has a slope greater than 10 percent and judged on the basis of the vegetation’s Virginia. NRCS has completed soil that same document says that prime effectiveness for the postmining land surveys for approximately 98 percent of farmland cannot be in areas that are use. Therefore, that portion of 30 CFR the State. They have draft reports for flooded frequently nor in areas that are 948.16(dd) has been satisfied and can be Logan, Mingo, Lincoln, and McDowell rocky (10 percent cover of rock removed. Counties that still need to be published. fragments coarser than 3 inches). 30 CFR 948.16(dd) also requires that The final reports will not be published Attachment 2P contains a proposed the West Virginia program contain the until late 2002 or early 2003. In the policy regarding prime farmlands requirement that revegetation success be meantime, NRCS will have to conduct identifications. The policy provides that judged on the basis of the vegetation’s soil investigations in counties that do soil surveys prepared by the NRCS will effectiveness in meeting the general not have completed soil surveys. NRCS be the basis for the final determination revegetation and reclamation plan does not feel that it is necessary to of prime farmlands in West Virginia requirements of subsections CSR 38–2– conduct prime farmland reconnaissance involving surface mining permits. In the 9.1 and 9.2. As mentioned above, CSR inspections in all counties of West cases where soil surveys are not 38–2–9.3.e., concerning the final bond Virginia. However, the procedural complete in a county and prime release inspection, satisfies this details for identifying and protecting farmland involvement is possible, the requirement by providing that, ‘‘... if prime farmland within the State need to NRCS will conduct a soil survey for the applicable standards have been met, the be negotiated through a memorandum of permit area for final determination. Director shall release the remainder of understanding (MOU) or an exchange of If a permit application contains any the bond.’’ CSR 38–2–12.2.c.3 further letters between NRCS and WVDEP. areas with less than 10 percent slope and it is evident the area has been used provides that only upon successful In its February 25, 2002, letter that for crops at least 5 years out of the last completion of the reclamation comprised Attachment 1A, WVDEP 20 years, it is possible that these areas requirements of the Act, these rules and provided NRCS a copy of its rules could be considered prime farmland. the permit conditions, may final bond governing prime farmlands at CSR 38– If this condition is present, the release be approved by the Director. The 2–10. WVDEP requested that NRCS applicant should check the NRCS soil ‘‘applicable standards’’ referred to at address its reconnaissance inspection survey for that county. If a soil survey CSR 38–2–9.3.e. include the requirements and concur with its does not exist for a particular county, revegetation success standards and the negative determination criteria. the applicant should consult the local ‘‘reclamation requirements’’ at CSR 38– WVDEP described the State’s 12.2.c.3 would include all other NRCS District Conservationist for a reconnaissance inspection process as it prime farmland determination. requirements of the West Virginia currently exists. Included in that program, including those requirements In counties where soil surveys have description were the following criteria, been published, the applicant must at CSR 38–2–9.1 and 9.2. Therefore, the one or more of which can be the basis remaining portion of 30 CFR 948.16(dd) locate the permit on the soils map and for a prime farmland negative by using the symbols on the map, has been satisfied and can be removed. determination: (1) No historical use of 3. Prime Farmland. 30 CFR 948.16(ee) determine the soil types in the proposed the land as cropland; (2) The slope of provides that West Virginia must submit area. Then, comparison with the the land in the permit area is greater documentation that the NRCS has been attached list of soils constituting prime than 10 percent; (3) Other factors (i.e., consulted with respect to the nature and farmlands in West Virginia will have to rocky surface, frequent flooding) extent of the prime farmland be made. If the soil type is considered disqualify the land as prime farmland; reconnaissance inspection required prime farmland on the list, the District and (4) A soil survey by a qualified under Subsection 38–2–10.1 of the Conservationist for that county must be person. State’s Surface Mining Reclamation contacted for final determination. Regulations. In addition, the State shall The letter further stated that WVDEP If the permit application involves either delete paragraphs (a)(2) and (a)(3) reviews the applicant’s information in prime farmland, all provisions of of Subsection 38–2–10.2 or submit the application and will check county Sections 507(b)(16) and 515(b)(7) of documentation that the NRCS State soil survey maps. The soils in the area Public Law 95–87 (Sections 22–3– Conservationist concurs with the are compared to a list from ‘‘West 9(a)(15) and 22–3–13(b)(7) of the West negative determination criteria set forth Virginia’s Prime Farmland Soil Mapping Virginia Surface Coal Mining and in these paragraphs. Units’’ by NRCS (Attachment 3P). If the Reclamation Act) and Section 10 of the soils in the proposed mining area are West Virginia Surface Mining State Response not on the list, then the negative Reclamation Regulations will apply. determinations are approved. If the Attachment 3P contains the Comments from NRCS resolve this issue negative determination is not approved, publication entitled, ‘‘West Virginia’s (WV Administrative Record No. WV–1203). then the NRCS is consulted. If prime The NRCS stated in their comment letter Prime Farmland Soil Mapping Units.’’ dated February 9, 2001, to OSM that all farmland is identified, then a much This publication contains a listing prime farmlands in the State have been more detailed plan is required. prime farmland soil mapping units mapped and are available. WVDEP has For counties where no mapping has throughout the State. The publication is contacted the NRCS and has drafted a letter been published, WVDEP’s procedure is dated April 1982. seeking further concurrence (Attachment described in Attachment 2P. If the As discussed in the May 23, 1990, 1A). slopes are less than 10 percent and the Federal Register (55 FR 21322), In an attempt to clarify these issues area has historically been used as although the State’s negative and to gain further insight into NRCS cropland, then NRCS is consulted. determination criteria appeared
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generally consistent with the national which are defined by the Secretary of determining the nature and extent of the criteria established at 7 CFR 657, Agriculture in 7 CFR Part 675 and reconnaissance inspection as provided Federal rules allow the NRCS to alter which have historically been used for under CSR 38–2–10.1. As mentioned these criteria and establish others. cropland. The State’s requirements above, the NRCS found the Furthermore, the definition of ‘‘prime regarding historical use as cropland, like reconnaissance inspection procedures farmland’’ at 30 CFR 701.5 vests the Federal definition of prime farmland outlined in WVDEP’s proposed policy, responsibility for establishing prime at 30 CFR 701.5, is consistent with ‘‘Prime Farmlands Identifications,’’ to farmland qualification criteria with the Section 701(20) of SMCRA. That section be acceptable. Because the NRCS U.S. Secretary of Agriculture. To ensure defines prime farmland to have the concurs with the State’s proposed that the State program is no less same meaning as that previously reconnaissance inspection procedures, effective than the Federal definition of prescribed by the Secretary of OSM finds the State’s reconnaissance ‘‘prime farmland’’ in 30 CFR 30 CFR Agriculture on the basis of such factors inspection requirements as set forth at 701.5, West Virginia was required to as moisture availability, temperature CSR 38–2–10.1 and further defined in submit documentation that the NRCS regime, chemical balance, permeability, the proposed policy, ‘‘Prime Farmlands has concurred with all negative surface layer composition, susceptibility Identifications,’’ to be no less effective determination criteria contained in to flooding, erosion characteristics, and than those Federal requirements set Subsection 10.2, except those of which historically have been used for forth at 30 CFR 785.17(b), which require paragraph (a)(1), which pertain to intensive agricultural purposes. As a reconnaissance inspection in all historical use for cropland. In addition discussed above, West Virginia was instances. Therefore, the remaining to demonstrating compliance with the required to submit documentation that portion of the required amendment at 30 consultation requirements of 30 CFR the NRCS concurs with all negative CFR 948.16(ee) requiring the 785.17(b)(1), the State was to submit determination criteria contained in concurrence of NRCS on the State’s documentation that it has consulted Subsection 10.2, except those of reconnaissance inspection procedures with the NRCS State Conservationist in paragraph (a)(1), which pertain to has been satisfied and can be removed. determining the nature and extent of the historical use for cropland. In addition, 4. Spillway Design. 30 CFR 948.16(oo) reconnaissance inspection. the State’s regulations at subsection provides that West Virginia must submit On March 7, 2002, NRCS responded 10.2.a.1 through 10.2.a.1.C are proposed revisions to Subsection 38–2– to WVDEP’s inquiries regarding prime substantively identical to the Federal 5.4(b)(8) of its Surface Mining farmland (Administrative Record regulations at 30 CFR 701.5 (definition Reclamation Regulations to require that Number WV–1290). The NRCS of ‘‘historically used for cropland’’). excavated sediment control structures, acknowledged that it is the Federal NRCS concurred with Subsection which are at ground level and that have agency with delegated authority under 10.2.a.2 and 10.2.a.3 relating to slopes an open exit channel constructed of law to make determinations on the greater than 10 percent and the presence non-erodible material, be designed to existence of prime farmland. NRCS of stones on the surface. It also agreed pass the peak discharge of a 25-year, 24- acknowledged that it provides with Subsection 10.2.a.4 and hour precipitation event. information on prime farmland through recommended the use of soil surveys in the soil survey program as part of its making negative determinations. State Response technical assistance effort to the NRCS concluded that nearly all areas The WVDEP is proposing language fourteen soil conservation districts in in the State have basic information on (Attachment 2) that all sediment control West Virginia. prime farmland. If new mapping is in structures spillways will be designed based With respect to reconnaissance progress, they would provide advance on a 25-year/24-hour storm, except for inspections, NRCS acknowledged that it information at the mapping scale used. haulroads. could be satisfied by using locally Generally, NRCS makes prime farmland available information. The soil map determinations at the scale of mapping State rules at CSR 38–2–5.4.b.8 units in the soil survey are listed for used for the soil survey, either 1:12,000 currently require all sediment control prime farmland and are cross-referenced or 1:24,000. This information is structures or other water retention in the local Field Office Technical published through the soil survey or the structures be designed with spillways to Guide. NRCS found that the local Field Office Technical Guide and safely pass a 25-year, 24-hour reconnaissance inspection procedures provided through West Virginia’s precipitation event. However, outlined in WVDEP’s proposed policy, fourteen soil conservation districts. subsection 5.4.b.8 contains a provision ‘‘Prime Farmlands Identifications,’’ NRCS stated that it was presently that allows excavated sediment control Attachment 2P, were acceptable to updating its prime farmland statewide structures, which are at ground level them. However, they requested that list. and have an open exit channel WVDEP change ‘‘SCS’’ to ‘‘NRCS.’’ Because the NRCS concurs with the constructed of non-erodible material, to In regard to the negative State’s negative determination criteria be designed to pass the peak discharge determination criteria, NRCS stated that set forth at CSR 38–2–10.2.a.2 and of a 10-year, 24-hour precipitation its definitions were not consistent with 10.2.a.3, regarding steepness, stoniness event. several parts of CSR 38–2–10. Because and flooding, OSM finds that the State As discussed in the October 4, 1991, cropping history is not considered in prime farmland requirements at CSR Federal Register (56 FR 50260) notice, the NRCS definition of prime farmland, 38–2–10.2 are no less effective than the the Federal regulations require that all it could not agree with any historic use Federal requirements at 30 CFR 785.17. sediment control structures not meeting of the land as set forth in Subsections Therefore, that portion of the required the size or other criteria of 30 CFR 10.2.a.1 through 10.2.a.1.C. According amendment at 30 CFR 948.16(ee) 77.216(a) must have spillways designed to the NRCS, prime farmland can be regarding negative determination to pass the peak discharge of a 25-year, cultivated, cropland, pasture, or criteria has been satisfied and can be 6-hour precipitation event. Therefore, forestland. However, it cannot be built removed. the requirement at subsection 5.4.b.8 up land or water. The Federal In addition, the State was to submit was found to be less effective than the regulations at 30 CFR 701.5 define documentation demonstrating that it Federal requirements at 30 CFR 816/ prime farmland to mean those lands had consulted with the NRCS in 817.46(c)(2)(ii)(B) [now 30 CFR 816/
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817.46(c)(2) and 30 CFR 816/ completion of the joint State/Federal legislative session. We will review the 817.49(a)(9)(ii)(C)]. review, it was determined that spillways emergency and final rules adopted by The Federal regulations at 30 CFR designed to safely pass a 25-year, 24 the State to ensure that the language of 816/817.46(c)(2) provide that a hour precipitation event would only those rules is substantively identical to sedimentation pond must include either require minor changes, and they would the language that we are approving a combination of principal and not impact the use of excavated today, with the exception of the emergency spillways or single spillway sediment control structures correction of typographical and configured as specified in 30 CFR 816/ (Administrative Record Number WV– grammatical errors such as the two 817.49(a)(9). The Federal regulations at 1273). In addition, the engineers noted in Finding 19. Any substantive 30 CFR 816/817.49(a)(9)(ii)(C) further determined that there is no peak differences in the language are subject to provide that the spillway for an discharge control problem because the further public review as a program impoundment not included in open exit channels for these sediment amendment under 30 CFR 732.17. paragraph (a)(9)(ii) (A) and (B) of this control structures are currently larger We find that the proposed revisions at section must be designed and than required due to the size of the CSR 38–2–5.4.b.8 regarding spillway constructed to safely pass a 25-year, 6- equipment used to construct them. As design requirements for sediment hour or greater precipitation event as the result of the review, WVDEP control and other water retention specified by the regulatory authority. proposed revisions to its spillway structures are no less effective than the On August 30, 1994, we provided the design requirements at 30 CFR 38–2– Federal requirements at 30 CFR 816/ State a follow-up letter regarding several 5.4.b.8. 817.46(c)(2) and 816/817.49(a)(9)(ii)(C). proposed revisions that the State had In its February 26, 2002, submission, On May 23, 1990, we approved the 24 made to its program in 1993 Attachment 2 contains a proposed hour event standard as being no less (Administrative Record Number WV– revision for CSR 38–2–5.4.b.8. As effective than a 6-hour event standard 934). As mentioned above, in October amended, the provision that exempted (55 FR 21304, 21318). Therefore, the 1991, we had required the State to excavated sediment control structures required amendment at 30 CFR amend its program and provide that that from the 25-year, 24-hour spillway 948.16(oo) has been satisfied and can be all sediment control structures not design requirement is deleted. In its removed. Upon promulgation of a final meeting the size or other criteria of 30 place, is language that provides the rule by the State, WVDEP will be CFR 77.216(a) must have spillways following: ‘‘provided, however that this required to provide a copy of it to OSM. designed to pass the peak discharge of subsection does not apply to OSM will review it to ensure that the a 25-year, 6-hour precipitation event. haulroads.’’ As proposed, CSR 38–2– language contained therein is identical Although we required the State to 5.4.b.8. now reads as follows. to that language which is being amend its program, the State had not approved today. Any substantive proposed any revisions at the time. 5.4.b.8. Be designed to safely pass a twenty-five (25) year, twenty-four (24) hour differences in the language will be Instead, the State maintained that these subject to further public review and types of structures by their vary nature precipitation event. The combination of both principal and/or emergency spillway of the approval by us as a program are not subject to catastrophic failure or structures shall be designed to safely pass the amendment. excessive erosion. According to the peak discharge of a twenty-five (25) year, 5. Certification of Sediment Control State, the design storm criteria are twenty-four (24) hour precipitation event, Structures. 30 CFR 948.16(tt) provides established to address these potentials provided, that a single open channel spillway that West Virginia must submit and are of not significance for these may be used only if it is of non-erodable proposed revisions to subsections 38–2– structures. Initially WVDEP thought that construction and designed to carry sustained 5.4(b)(1) and 5.4(d)(1) to require that all flows; or earth or grass-lined and designed to the Illinois program contained a structures be certified as having been provision similar to the 10-year, 24-hour carry short term, infrequent flows at non- erosive velocities where sustained flows are built in accordance with the detailed standard for excavated sediment control designs submitted and approved structures that WVDEP was seeking to not expected; provided, however, that this subsection does not apply to haulroads. pursuant to subsection 3.6(h)(4), and to adopt for West Virginia. However, we require that as-built plans be reviewed The proposed exemption from the 25- explained that the Illinois program does and approved by the regulatory year, 24-hour design standard for a not contain such a standard. Rather, the authority as permit revisions. Illinois program contains an exemption haulroad drainage control system is from the quarterly inspection consistent with 30 CFR 816/817.151(d) State Response requirements for excavated sediment and CSR 38–2–4.6, which provides that This required program amendment should control structures. The inspection ditch lines, culverts, bridges or other be removed. The WVDEP has developed a frequency was reduced because most structures associated with haulroads procedure for review of as-built certifications excavated sediment control structures must be capable of passing the peak (This procedure is included in the WVDEP have no embankments to examine for discharge of a 10-year, 24-hour Inspection and Enforcement Handbook B structural weaknesses or other precipitation event. copy attached) For structures with minor hazardous conditions. West Virginia has The State submitted the proposed rule design changes, the inspector will submit as- changes to the Legislature in February built plans in accordance with 5.4.b. Minor a similar standard. changes are those within the construction WVDEP stated that a spillway design 2002. However, because of a procedural tolerances described in 3.35 of the rules. For for a 25-year, 24-hour precipitation error, the Legislature did not adopt the structures with major design changes, a event would adversely affect the revised language. To correct this permit revision in accordance with 3.28.c of effectiveness of the on-bench sediment oversight, on April 19, 2002, WVDEP the rules is required to be submitted and control system. We and WVDEP decided filed these changes with the Secretary of approved prior to certification. The ‘‘as built’’ that an OSM engineer and a WVDEP State as emergency rules. According to certifications are after review incorporated as engineer would be assigned to review State law, emergency rules can remain part of the permit and the Aas built’’ drawings become the design for the structure. the spillway design standards and in effect for not more than 15 months. A 1988 OSM directive (copy attached) determine if the proposed change would Final legislative rules are to be adopted describes the federal policy and procedures actually reduce the effectiveness of on- by the State during a special legislative for processing construction certifications bench sediment control systems. Upon session or during the regular 2003 when they indicate that a structure has been
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constructed differently from the approved quality and will insure the long-term 3. The recommended outslope of the design and this OSM directive treats ‘‘as stability of the backfill. constructed barrier is 2v:1v (This is a built’’ certifications in a manner similar to typographical error and should be State Response the WV program. 2h:1v) with a static safety factor of 1.3. In its response to this required The State added a new provision at 4. If the proposed outslope is steeper amendment, quoted above, WVDEP CSR 38–2–14.8.a.6. The new language is than 2v:1v (This is a typographical error stated that minor changes are those as follows: and should be 2h:1v), the constructed within the construction tolerances 14.8.a.6. Constructed outcrop barriers shall barrier shall be designed to have a static described in subsection 3.35 of the be designed using standard engineering safety factor of 1.5. rules. Sediment control structures that procedures to inhibit slides and erosion to 5. If constructed barrier is part of the have been constructed with minor ensure the long-term stability of the backfill. sediment control system (sediment changes that are within approved The constructed outcrop barriers shall have ditch), the constructed barrier shall be construction tolerances are, in effect, a minimum static safety factor of 1.3, and designed to have a static safety factor of built in accordance with the approved, where water quality is paramount, the 1.5. constructed barriers shall be composed of As discussed in the January 21, 1981, certified designs in the preplan. impervious material with controlled Therefore, we find that such structures discharge points. Federal Register (46 FR 5919) notice, are built in compliance with the State law provides for the use of requirement at CSR 38–2–5.4.b.1. which In addition, the State contended in its constructed outcrop barriers to prevent provides that sediment control February 26, 2002, program submissions slides and erosion, while Section structures be ‘‘constructed in that: 525(b)(25) of SMCRA requires the accordance with the plans, criteria, and The word ‘‘inhibit’’ as in ‘‘to inhibit slides retention of a natural barrier. It was specifications set forth in the preplan.’’ and erosion’’ is (no) less effective than the determined in 1981 that the State’s WVDEP also stated that a permit Federal standard of ‘‘prevent’’ at 30 CFR alternative for a constructed barrier may revision is required for as-built 816.99(a). be more stringent than the SMCRA structures with major design changes. The State statutory language for outcrop requirement. However, at the time, the barriers at W.Va. Code 22–3–13(b)(25) State program lacked specific criteria for Therefore, the requirements at CSR 38– requires the retention of the natural barrier to 2–3.28 concerning permit revisions ‘‘inhibit’’ slides and erosion. As set forth in the design of constructed outcrop would apply. In addition, CSR 38–2– the Federal Register dated January 21, 1981, barriers that will ensure that their 5.4.b.1., concerning design and OSM agrees that provisions regarding natural performance in preventing slides and construction requirements, provides barriers at W.Va. Code 22–3–13(b)(25) and erosion would be more effective than that as-built plans must be submitted by (c)(4) were found to be consistent with that of a natural barrier. the operator and approved by WVDEP Section 515(b)(25) of SMCRA. In April 1983, West Virginia immediately following construction. submitted specific design criteria for The as-built plans shall indicate the Standard Engineering Practices outcrop barriers. The approval of the original design, the extent of changes, The constructed outcrop barriers are design criteria for constructed outcrop and reference points. CSR 38–2–5.4.b.1. designed structures that have a required barriers was announced in the also provides that all sediment control minimum long-term static safety factor, November 16, 1983, Federal Register or other water retention structures be while the natural outcrop barriers are notice (48 FR 52037). However, the certified in accordance with CSR 38–2– not designed structures and are not design criteria were inadvertently 5.4.d. This satisfies the portion of 30 required to have a minimum factor of deleted from the State program. As CFR 948.16(tt) that requires certification safety. Furthermore, the analysis of discussed in the October 4, 1991, in accordance with the detailed design stability includes consideration of the Federal Register notice (56 FR 50265), plans submitted and approved pursuant material to be placed, the foundation, we required the State to specify design to subsection 3.6.h.4, which requires the and site conditions. The WVDEP is in requirements for constructed outcrop Secretary to approve detailed design the process of developing guidelines for barriers. plans for a structure before construction constructed outcrop barriers that will We later published a notice in the begins. CSR 38–2–5.4.d.1. provides that include: requirements for the outslope; February 21, 1996, Federal Register (61 if as-built plans are submitted, the sequencing of construction of the FR 6525) which announced the certification shall describe how and to outcrop barrier; and minimum factor of modification of the required amendment what extent the construction deviates safety when barrier is part of the at 30 CFR 948.16(xx) requiring that the from the proposed design, and the sediment control system (Attachment 9). State amend its program at CSR 38–2– explanation and certification of how the The State guideline for constructed 14.8.a to specify design requirements of structure will meet the performance outcrop barriers is contained in outcrop barriers that will be equivalent standards. Attachment 9. It is entitled to natural barriers and will assure the We find that the West Virginia ‘‘Constructed Outcrop Barriers.’’ protection of water quality and ensure program requires that as-built sediment Attachment 9 provides that standard the long-term stability of the backfill. control structures be reviewed and engineering practices for constructed The proposed rule and the new approved as permit revisions, and that outcrop barriers shall include the guideline are intended to satisfy that all sediment control structures shall be following: requirement. certified. Therefore, the required 1. The design of the constructed Section 22–3–13(b)(25) of the Code of amendment at 30 CFR 948.16(tt) is barrier shall take into consideration site West Virginia (W. Va. Code) provides satisfied and can be removed. conditions. that constructed barriers may be 6. Constructed Outcrop Barriers. 30 2. The construction of the outcrop allowed under specified circumstances, CFR 948.16(xx) provides that West barrier shall occur simultaneously with provided that, at a minimum, the Virginia must revise CSR 38–2–14.8(a) the removal of the natural barrier and be constructed barrier must be of sufficient to specify design requirements for located at or near the edge of the lowest width and height to provide adequate constructed outcrop barriers that will be coal seam being mined. Temporary stability and the stability factor must the equivalent of natural barriers and measures must be (in) place until the equal or exceed that of the natural will assure the protection of water barrier is constructed. outcrop barrier. Furthermore, where
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water quality is paramount, the State Response order or other decision issued under constructed barrier must be composed The WVDEP is proposing language Chapter 22, Article 3 of the W. Va. Code, of impervious material with controlled (Attachment 3) to exclude unjust hardship as which is the State counterpart to discharge points. criteria to support the granting of temporary SMCRA. WVDEP has informed the Surface As discussed above, the revised rule relief under WV Code 22–3. Mine Board that unjust hardship is an at CSR 38–2–14.8.a.6 further provides In its February 26, 2002, submission, invalid basis for granting temporary that constructed outcrop barriers shall WVDEP included Attachment 3. relief for SMCRA purposes. In our be designed using standard engineering Attachment 3 contains a proposed meeting with the WVDEP on January 15, procedures to inhibit slides and erosion revision to W. Va. Code Section 22B–1– 2002, WVDEP stated that, to its to ensure the long-term stability of the 7, Appeals to boards. The attachment knowledge, the Surface Mine Board has backfill. The constructed outcrop consists of additions and deletions to not used this criterion, and the State has barriers shall have a minimum static language at paragraphs (d) and (h) of never asked that it be a consideration in safety factor of 1.3, and where water Section 22B–1–7 and identifies how granting a stay or suspending an order quality is paramount, the constructed these statutory provisions are to be pursuant to W. Va. Code 22B–1–7(d) barriers shall be composed of amended. Only paragraph (d) pertains to (Administrative Record Number WV– impervious material with controlled the required amendment relating to 1271). discharge points. The proposed rule was unjust hardship. On October 26, 1988, the West included in WVDEP’s program WVDEP proposes to amend paragraph Virginia Supreme Court of Appeals in amendment of May 2, 2001 (d) by adding a proviso that provides as Canestraro v. Faerber ruled that, ‘‘When (Administrative Record Number WV– follows: ‘‘Provided; however, the a provision of the West Virginia Surface 1209). The promulgation of CSR 38–2– criterion of unjust hardship cannot be Coal Mining and Reclamation Act, 14.8.a.6 was authorized by Enrolled used to support the granting of W.Va. Code 22A–3–1 et seq., is Committee Substitute for House Bill temporary relief for an order or other inconsistent with Federal requirements 2663. The bill was passed by the decision issued under article three, in the Surface Mining Control and Legislature on April 14, 2001, and chapter twenty-two of this code.’’ The Reclamation Act, 30 U.S.C. § 1201 et proposed language was submitted to the signed into law by the Governor on May seq., the State Act must be read in a way Legislature for consideration. 2, 2001 (Administrative Record Number consistent with the Federal Act.’’ See On February 27, 2002, the proposed WV–1210). Canestraro v. Faerber, 179 W. Va. 793, language was modified and reported out 374 S.E.2d 319 (1988) (Administrative In addition, WVDEP has proposed a of committee as Senate Bill 735. The Record Number WV–761). guideline that further clarifies what revised language reads as follows: In another decision rendered on July standard engineering practices will be ‘‘Provided, That unjust hardship shall 12, 1996, the West Virginia Supreme followed when allowing for the removal not be grounds for granting a stay or Court of Appeals held that, pursuant to of a natural barrier and constructing an suspension of such order, permit or 30 CFR 731.17(g), whenever changes to outcrop barrier. Approval of the official action for an order issued laws or regulations that make up the proposed guideline is being made with pursuant to article three, chapter approved State program regarding the understanding that the State will twenty-two of this code.’’ Engrossed surface mining reclamation are correct the typographical errors noted Senate Bill 735 passed the Senate on proposed by the State, no such change above. March 1, 2002, and was reported to the to the laws or regulations shall take We find that the specific design House Judiciary Committee where it effect for purposes of a State program criteria described above will ensure that died in committee without further until approved as an amendment by constructed outcrop barriers will be as action by the Legislature. OSM. In addition, the Supreme Court effective as natural barriers in As announced in the February 21, ruled that a State regulation enacted 1996, Federal Register (61 FR 6516) on preventing slides and erosion. In pursuant to the West Virginia Surface we did not approve the language at addition, we find that the proposed rule Coal Mining and Reclamation Act Section 22B–1–7(d) concerning allowing at CSR 38–2–14.8.a.6, together with the (WVSCMRA), W. Va. Code 22A–3–1 to temporary relief where the appellant proposed guideline containing standard 40 (1993), [now West Virginia Code 22– demonstrates that the executed decision engineering practices for the design of 3–1 to 32 (1994 and Supp.1995)], must appealed from will result in the constructed outcrop barriers, are in be read in a manner consistent with appellant suffering an ‘‘unjust accordance with Section 515(b)(25) of Federal regulations enacted in hardship,’’ because the language is SMCRA. Therefore, the required accordance with SMCRA, 30 U.S.C. inconsistent with Sections 514(d) and 1201 to 1328 (1986). See Charles program amendment codified at 30 CFR 525(c) of SMCRA, which do not allow Schultz v. Consolidation Coal Company, 948.16(xx) regarding constructed temporary relief to be granted based on 197 W.Va. 375, 475 S.E.2d 467 (1996) outcrop barriers is satisfied with the a showing of unjust hardship. As (Administrative Record Number WV– adoption of the proposed rule and discussed in the July 14, 1998, Federal 1038). guideline and can be removed. Register notice (63 FR 37775), our As discussed above, we have 7. Unjust Hardship Criterion. 30 CFR earlier required amendment regarding previously ruled that West Virginia’s 948.16(nnn) provides that West Virginia unjust hardship was modified based on temporary relief provision at W. Va. must submit either a proposed a settlement agreement in West Virginia Code Section 22B–1–7(d) cannot be amendment or a description of an Mining and Reclamation Association v. approved ‘‘to the extent that the unjust amendment to be proposed, together Babbitt, Civil Action No. 2:96–0371 hardship criterion supports the granting with a timetable for adoption, to revise (S.D. W.Va., July 11, 1997). We clarified of temporary relief from an order or Section 22B–1–7(d) to remove unjust our earlier decision by stating that other decision issued under Chapter 22, hardship as a criterion to support the Section 22B–1–7(d) is not approved Article 3 of the West Virginia Code’’ (63 granting of temporary relief from an only to the extent that it includes unjust FR 37775; July 14, 1998). The effect of order or other decision issued under hardship as a criterion to support the that decision is that the unjust hardship Chapter 22, Article 3 of the W. Va. Code. granting of temporary relief from an criterion at W. Va. Code 22B–1–7(d) is
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not part of the State’s approved West Virginia program. This amendment codified at 30 CFR regulatory program (63 FR 37775). disapproved provision should never be 948.16(qqq) which can, therefore, be Furthermore, as mentioned above, implemented by the State because the removed. We also find that the new WVDEP has never asked that unjust West Virginia Supreme Court of language which clarifies that measures hardship be a consideration by the Appeals has held that ‘‘when there is a approved in the permit and taken Surface Mine Board in granting a stay or conflict between the federal and state during mining and reclamation to suspending an order pursuant to W. Va. provisions, the less restrictive state prevent the formation of acid drainage Code 22B–1–7(d), and it has informed provision must yield to the more shall not be considered passive the Board that it should never be a basis stringent federal provision.*** treatment, does not render the West for granting temporary relief under the Canestraro, 374 S.E.2d at, 321. As noted Virginia program less effective than the approved State program. In addition, the in Finding 7, the West Virginia Supreme Federal regulations. Such measures West Virginia Supreme Court of Court of Appeals also held in Schultz might include, for example, selective Appeals has held that ‘‘when there is a that no change in a State surface mining placement of acid-generating materials conflict between the Federal and State law or regulation can take effect for in the backfill, placing limestone or provisions, the less restrictive State purposes of a State program until other alkaline-generating materials in provision must yield to the more approved by OSM, and State surface the backfill in close proximity to acid- stringent Federal provision.*** mining reclamation regulations must be generating materials, and the use of Canestraro, 374 S.E.2d at 321. In light read in a manner consistent with underdrains to prevent groundwater of our disapproval of the statutory Federal regulations enacted in from wetting acid-generating materials. language that is the subject of this accordance with SMCRA, Schultz, 475 Measures such as these are taken to required amendment, and in light of the S.E.2d 467. (Administrative Record prevent the formation of acid principles articulated in Canestraro, and Number WV–1038). Because we have discharges, and not to treat such Schultz, we now believe that the previously disapproved the language discharges once they are discovered. concerns identified in the required that is the subject of this required Therefore, we find the new provision amendment at 30 CFR 948.16(nnn) have amendment, and because of the does not render the West Virginia been satisfied, thereby rendering the principle articulated in Canestraro and program less effective than the Federal required amendment unnecessary. Schultz, we conclude that the required regulations concerning bond release at Therefore, we are removing it. However, amendment at 30 CFR 948.16(ooo) has 30 CFR 800.40, and the provisions to avoid confusion or misinterpretation been satisfied. Therefore, we are concerning hydrologic balance of the approved State regulatory removing it. protection at 30 CFR 816.41 and the program, we recommend that the 9. Bond Release. 30 CFR 948.16(qqq) backfilling and grading requirements at statutory provision discussed above be provides that West Virginia must revise 30 CFR 816/817.102(f) and can be deleted. CSR 38–2–2.20, or otherwise revise the approved. 8. Economic Feasibility. 30 CFR West Virginia program to clarify that a 10. Water Supply Replacement 948.16(ooo) provides that West Virginia bond may not be released where passive Waiver. 30 CFR 948.16(sss) provides must submit either a proposed treatment systems are used to achieve that West Virginia must submit either a amendment or a description of an compliance with applicable effluent proposed amendment or a description of amendment to be proposed, together limitations. an amendment to be proposed, together with a timetable for adoption, to revise with a timetable for adoption, to revise W. Va. Code 22B–1–7(h) by removing State Response CSR 38–2–14.5(h) and W. Va. Code 22– reference to Article 3, Chapter 22. CSR 38–2–12.2.e was amended to 3–24(b) to clarify that the replacement of water supply can only be waived State Response provide as follows. under the conditions set forth in the In our meeting with the WVDEP on 12.2.e. Notwithstanding any other definition of ‘‘Replacement of water January 15, 2002, the WVDEP stated that provisions of this rule, no bond release or supply,’’ paragraph (b), at 30 CFR 701.5. W. Va. Code 22B–1–7(h) applies only to reduction will be granted if, at the time, the Environmental Quality Board, water discharged from or affected by the State Response operation requires chemical or passive which hears Clean Water Act appeals. In treatment in order to comply with applicable In our January 15, 2002, meeting with its February 26, 2002, submittal, effluent limitations or water quality WVDEP, State officials said they would WVDEP provided proposed language (at standards. Measures approved in the permit reevaluate the Federal language set forth Attachment 3) to delete the reference to and taken during mining and reclamation to in the definition of ‘‘Replacement of Article 3 Chapter 22 from W. Va. Code prevent the formation of acid drainage shall water supply’’ paragraph (b), at 30 CFR 22B–1–7(h). The language was included not be considered passive treatment; 701.5. Subsequently, in its March 8, in Engrossed Senate Bill 735 and Provided, That the Director may approve a 2002, letter, WVDEP stated that it had reported out of the Judiciary Committee request for Phase I but not Phase II or III, reevaluated its water replacement and on February 27, 2002. Despite WVDEP’s release if the applicant demonstrates to the waiver requirements at W. Va. Code 22– satisfaction of the Director that either. * * * good efforts, the bill did not pass the 3–24 and in its rules. WVDEP stated that Legislature in the 2002 legislative CSR 38–2–12.2.e was amended, in it plans to propose changes for the 2003 session. effect, by prohibiting bond release if regular legislative session that would We have previously ruled that West water discharged from the permit area clarify that replacement of an affected Virginia’s administrative appeals requires chemical or passive treatment. water supply that is needed for the provision at W. Va. Code 22B–1–7(h) In addition, a new sentence is added existing land use or for the post-mining could not be approved ‘‘only to the that clarifies that measures approved in land use cannot be waived. WVDEP extent that it references Article 3, the permit and taken during mining and stated that historically, under the State Chapter 22 of the W. Va. Code.’’ (63 FR reclamation to prevent the formation of program, replacement waivers are not 37774, 37775; July 14, 1998). The effect acid drainage shall not be considered sought nor granted for such water of that decision is that the reference to passive treatment. supplies. In addition, WVDEP stated Article 3 Chapter 22 at W. Va. Code We find that as amended, the that, until it amends its program 22B–1–7(h) is not part of the approved provision satisfies the required program explicitly to be consistent with the
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Federal water replacement requirement, OSM announced the approval of the State Response it will only allow water replacement State’s definition of replacement of waivers in accordance with the water supply at W.Va. Code 22–3–3(z), This required program amendment should provisions in the definition of but we required that the State adopt a be removed. The State regulation in ‘‘Replacement of water supply,’’ subsection 3.8.c. was amended to not apply counterpart to 30 CFR 701.5(b) (64 FR to new and existing coal waste facilities and paragraph (b), at 30 CFR 701.5. at 6202–6203). As noted above, the was submitted to the Office of Surface W. Va. Code 22–3–24(b) states that WVDEP has committed to allowing Mining on March 17, 2000, as a program ‘‘[a]ny operator shall replace the water waivers only in a manner consistent amendment. A copy of the revised subsection supply of an owner of interest in real with the Federal definition. This 3.8.c. is attached and is pending OSM action. property who obtains all or part of the commitment complies with the mandate The State saw no need to add language about approximate original contour to regulation at owner’s supply of water for domestic, of the West Virginia Supreme Court of agricultural, industrial or other subsection 3.8(c) since the WV Surface Coal Appeals, which has held that ‘‘when Mining and Reclamation Act performance legitimate use from an underground or there is a conflict between the federal surface source where the supply has standard at Section 22–3–13(b)(3) is clear and state provisions, the less restrictive about the requirement to restore the been affected by contamination, state provision must yield to the more approximate original contour with respect to diminution or interruption proximately stringent federal provision* * * surface mines. caused by the surface-mining operation, unless waived by the owner.’’ CSR 38– Canestraro, 379 S.E.2.d, at 321. On August 18, 2000 (65 FR 50413), we 2–14.5(h) limits the availability of a As noted above in Finding 7, the West approved the State’s change which waiver. It provides that ‘‘[a] waiver of Virginia Supreme Court of Appeals has clarifies that the exemption at CSR 38– water supply replacement granted by a ruled that ‘‘[w]hen a provision of the 2–3.8.c. does not apply to new and landowner as provided in subsection (b) West Virginia Surface Coal Mining and existing coal waste facilities. In that of section 24 of the Act shall apply only Reclamation Act, W.Va. Code 22A–3–1 same notice, we revised 30 CFR to underground mining operations, et seq., is inconsistent with Federal 948.16(vvv)(1) by deleting the provided that a waiver shall not exempt requirements in the Surface Mining requirement to clarify that the any operator from the responsibility of Control and Reclamation Act, 30 U.S.C. exemption at CSR 38–2–3.8(c) does not maintaining water quality.’’ The § 1201 et seq., the State Act must be apply to the requirements for new and existing coal mine waste disposal limitation of maintaining water quality read in a way consistent with the facilities. However, we continued to is not sufficient to be no less effective Federal Act.’’ Canestraro, 374 S.E.2d at require at revised 30 CFR 948.16(vvv)(1) than the corresponding Federal 321 (Administrative Record Number that the State clarify that the exemption requirements. WV–761). 30 CFR 701.5 defines the term at CSR 38–2–3.8(c) does not apply to the ‘‘Replacement of water supply.’’ Part (b) In addition, State rules must be read requirement to restore the land to of the definition states that replacement in a manner consistent with Federal approximate original contour (AOC). requirements may be satisfied by regulations, Schultz. As noted above in In its response quoted above, WVDEP demonstrating that a suitable alternative Finding 7, the West Virginia Supreme stated that Section 22–3–13(b)(3) of the water source is available and could Court of Appeals also held in Schultz West Virginia Surface Coal Mining and feasibly be developed, but only ‘‘[i]f the that no change in a State surface mining Reclamation Act is clear about the affected water supply was not needed law or regulation can take effect for requirement to restore the AOC with for the land use in existence at the time purposes of a State program until respect to surface mines. W.Va. Code at of loss, contamination, or diminution, approved by OSM, and State surface 22–3–13(b)(3) requires surface mines to and if the supply is not needed to mining reclamation regulations must be be restored to AOC, except those which achieve the postmining land use.* * *’’ read in a manner consistent with receive a variance under W.Va. Code Thus, under Federal regulations, actual Federal regulations enacted in 22–3–13(c) concerning mountaintop replacement of water supply is required accordance with SMCRA, Schultz, 475 removal mining operations, and for unless consideration is given to effect S.E.2d 467. (Administrative Record those situations where the overburden is on premining and postmining land uses. Number WV–1038). thin and the resulting material is West Virginia’s waiver provision Because of the State’s commitment to insufficient to achieve AOC. In addition, contains no equivalent consideration. comply with the more restrictive W.Va. Code 22–3–13(d) and (e) provide Federal law is therefore more restrictive Federal waiver requirement, and for variances from AOC for steep slope and the State regulations are less because of the principles established in mining operations under certain effective. Canestraro and Schultz, we conclude circumstances. Given this clarification, We have previously ruled that West we are approving the State’s response to that the required amendment at 30 CFR Virginia’s water replacement waiver the required amendment at 30 CFR 948.16(sss) has been satisfied. provision could not be approved ‘‘to the 948.16(vvv)(1) to the extent that the Therefore, we are removing it. We extent that* * * [it] would not be exemption at CSR 38–2–3.8(c) does not recommend that the provision be implemented in accordance with the apply to the requirement to restore the included in the program at some future definition of ‘‘Replacement of water land to AOC. Therefore, to the extent date to avoid confusion or supply’’ at 30 CFR 701.5.’’ (61 FR at that CSR 38–2–3.8(c) is limited to misinterpretation. 6524, February 21, 1996). In addition, existing facilities and does not apply to OSM required that the West Virginia 11. Existing Structures and the requirement to restore the land to program be further amended to clarify Approximate Original Contour (AOC). AOC, we find that the required that under W. Va. Code Section 22–3– 30 CFR 948.16(vvv)(1) provides that amendment codified at 30 CFR 24(b) and CSR 38–2–14.5.h, the West Virginia must amend its program 948.16(vvv)(1) is satisfied and can be replacement of water supply can only be to be consistent with 30 CFR removed. waived under the conditions set forth in 701.11(e)(2) by clarifying that the 12. Certification of Haulroads. 30 CFR the definition of ‘‘Replacement of water exemption at CSR 38–2–3.8(c) does not 948.16(vvv)(2) provides that West supply at 30 CFR 701.5(b). In the apply to the requirements to restore the Virginia must amend CSR 38–2–4.12 to February 9, 1999, Federal Register, land to AOC. reinstate the following deleted language:
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‘‘and submitted for approval to the legume, hardwoods for hardwoods, other as-built haulroad configurations Director as a permit revision.’’ etc.). Approved by letter submittal and must be approved by the Secretary as inspector signs off on it. permit revisions. State Response 5. Minor bench size changes on fills Neither SMCRA nor the Federal The WVDEP has established guidelines (i.e., wider than twenty (20) feet. regulations provides for the approval of (Series 20 Effective 1–97, page 22 of the I&E (Approved on the final certification) as-built certifications that are within the Handbook, Attachment 4) for approval of 6. Outlets/spillways constructed of construction tolerance limits as set forth minor revisions to the original design. Minor different material than originally in CSR 38–2–3.35. However, we find deviations from the approved plan for proposed. (Approved on the as-built haulroads (width, grade, etc.) are permissible that the existing State requirements certification) regarding as-built certifications, together as long they are within the construction 7. Additional rock flumes on backfill tolerance specified in 38–3.35 [38–2–3.35]. with the proposed State clarification areas (letter approval when regarding minor changes in the width The provision at CSR 38–2–4.12 constructed). and/or slope of haulroads, as described concerns the certification of haulroads. 8. Minor encroachment of the permit However, the procedures that were boundary (i.e., slips, shootovers, etc.). in Item (2) of Attachment 4, appear initially submitted to OSM only applied These need to be covered with a notice reasonable and are not inconsistent with to the approval of as-built certifications of violation (NOV) then shown on a SMCRA or the Federal regulations. for drainage systems. During the January progress map or on the final map. The Because the State has clarified that only 15, 2002, meeting WVDEP agreed to acreage involved has to be included in minor deviations from the approved reevaluate this issue and, if necessary, the disturbed acreage number on the designs for haulroads are permissible as amend its policy to make it applicable Phase I release application, and the long as they are within the construction to haulroads (Administrative Record bond reduction calculated accordingly. tolerance limits specified at CSR 38–2– Number WV–1271). Keep in mind that some of these 3.35, and all other as-built haulroad On February 26, 2002, WVDEP changes need to be delineated on the configurations that exceed those limits submitted revised guidelines for the ‘‘map of record.’’ This can be done by require the Secretary’s approval as approval of minor revisions to the requesting a progress map to accompany permit revisions, we are approving the original design of haulroads the certification or letter, or at a mid State’s proposal and removing the (Administrative Record Number WV– term review, or at the time of final map required amendment at 30 CFR 1276). The guidelines are set forth in submittal (Phase I release). 948.16(vvv)(2) which requires that all Attachment 4. As noted above, the State As described in the July 24, 1996, as-built certifications for haulroads be clarified that minor deviations from the Federal Register notice (61 FR 38384), submitted and approved as permit approved plan for haulroads are we approved West Virginia’s haulroad revisions. This approval is limited to permissible so long as they are within certification requirements, except to the minor as-built haulroad certifications as the construction tolerance limits extent that the Director (now Secretary) described herein and does not apply to specified in CSR 38–2–3.35, not 38–3.35 is removed from the responsibility of the other proposed minor revisions that as quoted above. reviewing permit revisions as required field personnel may authorize as Attachment 4 is entitled, ‘‘Minor under 30 CFR 774.11(c). In addition, we described in Attachment 4, ‘‘Minor Revisions Approvable by Field Level required the State to reinstate the Revisions Approvable by Field Level Personnel’’ and contains the following following deleted language at CSR 38– Personnel,’’ Series 20, page 22 of the language: 2–4.12, ‘‘and submitted for approval to Inspection and Enforcement Handbook. Purpose: Establish guidelines for the Director as a permit revision.’’ The other revisions mentioned therein approval of minor adjustments to CSR 38–2–3.35 provides that all grade do not pertain to this rulemaking. original proposals. measurements and linear measurements 13. Slurry Impoundments. 30 CFR Policy/Procedures: Minor revisions to in the State’s rules shall be subject to a 948.16(vvv)(3) provides that West original designs must be within the tolerance of two (2) percent. All angles Virginia must amend its program by construction tolerances specified in 38– in the rules shall be measured from the clarifying that the requirements at CSR 2–3.35. If not, a permit revision is horizontal and shall be subject to a 38–2–5.4(c) also apply to slurry required. The following are examples of tolerance of five (5) percent. Provided, impoundments. however, this allowable deviation from minor revisions that are approvable at State Response the field inspector level. the approved plan does not affect 1. Minor drainage structure storage capacity and/or performance The WVDEP is proposing a change to configuration changes (i.e., round vs. standards. We announced our approval subsection 5.4.d.4 (Attachment 5) which square, spillway one one side instead of of these requirements in the February 9, clarifies that non-MSHA size coal processing the other, etc.) as long as the required 1999, Federal Register (64 FR 6208). waste dams and embankments will be certified by a registered professional engineer sediment storage capacity is maintained. The approved tolerances pertain to the as indicated in 30 CFR 780.25. (Approved by virtue of the inspector amount of allowed variance between the signing off on the as-built certification) approved designs in the permit In the July 24, 1996, Federal Register 2. Minor road width/slope application and the ‘‘as built’’ (61 FR 38384), we found that the configuration (as long as the width/ measurements of those designs. removal of the words, ‘‘which may slope do not compromise safety Only Item (2) of the proposed include slurry impoundments’’ from considerations). (Approved as an as- guidelines described above relates to CSR 38–2–5.4.c. made it unclear as to built certification) haulroads. As noted in Attachment 4, a whether slurry impoundments are 3. Additional sediment control minor road width/slope configuration, subject to the impoundment capacity (i.e., additional sumps on as long as the width/slope revision is requirements at CSR 38–2–5.4.c. If CSR roads, pre sumps in front of sediment within the construction tolerance limits 38–2–5.4.c. does not apply to slurry ponds). (Approved as an as-built specified in CSR 38–2–3.35 and does impoundments (which appeared to be certification) not compromise safety considerations, the purpose of the deletion), the 4. Species substitution on planting can be approved as an as-built provision is rendered less effective than plans (i.e., substituting legume for certification by field personnel. All 30 CFR 816.49 and 817.49.
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The State’s existing rules at CSR 38– in effect for not more than 15 months. 14. Coal Refuse Disposal in the 2–22.4.c. governing small Final legislative rules are to be adopted Backfill. 30 CFR 948.15(vvv)(4) provides impoundments state that coal refuse by the State during a special legislative that West Virginia must amend CSR 38– sites which result in impoundments session or during the regular 2003 2–14.15(m), or otherwise amend its which are not subject to the Dam legislative session. We will review the program to require compliance with 30 Control Act or the Federal Mine Health emergency and final rules adopted by CFR 816/817.81(b), (d), and (e) and Safety Act shall be designed, the State to ensure that the language of regarding coal refuse disposal, constructed, and maintained subject to those rules is substantively identical to foundation investigations and the requirements of this subsection and the language that we are approving emergency procedures and to clarify subsections CSR 38–2–5.4 and 22.5.j.6. today, with the exception of the that where the coal processing waste By referencing subsection 5.4, the correction of typographical and proposed to be placed in the backfill required amendment at 30 CFR grammatical errors such as the two contains acid-or toxic-producing 948.16(vvv)(3) appears to be satisfied in noted in Finding 19. Any substantive materials, such material must not be so far as it is clear that all non-MSHA differences in the language are subject to buried or stored in proximity to any size or small coal refuse impoundments further public review as a program drainage course such as springs and must comply with the State’s amendment under 30 CFR 732.17. seeps, must be protected from impoundment requirements at As discussed above, CSR 38–2–22.4.c. groundwater by the appropriate use of subsection 5.4. However, because CSR clarifies that CSR 38–2–5.4 applies to rock drains under the backfill and along 38–2–5.4.d allows certain small, non-MSHA size coal refuse dams the highwall, and be protected from impoundments to be certified by a and embankments. In addition, the water infiltration into the backfill by the registered professional engineer or a proposed revision at CSR 38–2–5.4.d.3 use of appropriate methods such as licensed land surveyor, we questioned clarifies that all small coal refuse dams diversion drains for surface runoff or whether the State’s existing and embankments must be certified by encapsulation with clay or other requirements were as effective as the a registered professional engineer. material of low permeability. Federal rules. The Federal requirements Furthermore, CSR 38–2–5.4.d.4. at 30 CFR 780.25(a)(3)(i) provides that provides that the design and State Response all coal refuse impoundments, construction of coal refuse This required program amendment should regardless of size, must be certified by impoundments meeting the MSHA size be removed. Coal refuse placed in the backfill a registered professional engineer. In or other requirements at 30 CFR pursuant to subsection 14.15(m) is placed addition, it was unclear if coal refuse 77.216(a) may only be performed by a into the mine workings or excavation areas. dams and embankments which are registered professional engineer. Given This placement, when done in accordance subject to the Dam Control Act or the that there are design and construction with the State’s backfilling and grading, Federal Mine Health and Safety Act are certification requirements for both stability and toxic material handling plan requirements, is consistent with the subject to the impoundment MSHA and non-MSHA size coal refuse provisions of 30 CFR 816.81 and 817.81. requirements at CSR 38–2–5.4(c). impoundments at CSR 38–2–5.4.d, the On February 26, 2002, WVDEP structure of this section implies that all In our January 15, 2002, meeting with submitted the proposed revision coal refuse impoundments must comply WVDEP (Administrative Record described above to its program with the impoundment requirements at Number WV–1271), State officials (Administrative Record Number WV– CSR 38–2–5.4.c. In addition, CSR 38–2– agreed to clarify how the State’s existing 1276). Attachment 5 contains a 22.1 requires that all coal slurry rules require that coal processing waste proposed revision to CSR 38–2–5.4.d. impoundments, including MSHA size outside the permit area must be According to the State, this provision is impoundments, must comply with all disposed of in accordance with the to be amended at subdivision 38–2– applicable requirements of the State standards at 30 CFR 816/817.81(b). In 5.4.d.3. by adding the words ‘‘except all program. These would include those addition, WVDEP would clarify how its coal processing waste dams and requirements contained in CSR 38–2– rules require sufficient foundation embankments covered by subsection 5.4. In accordance with 30 CFR investigations as required by 30 CFR 22.4.c. shall be certified by a registered 780.25(a)(3)(i) and 784.16(a)(3)(i), we 816/817.81(d). Further, WVDEP agreed professional engineer.’’ As amended, are approving the proposed revision at to provide us with an explanation of CSR 38–2–5.4.d.3. would read as CSR 38–2–5.4.d.3. which provides that how its other program requirements follows: Design and construction all coal processing waste dams and regarding underdrains, diversions, and certification of embankment type embankments covered by subsection toxic handling plans apply to the sediment control structures may be 22.4.c. shall be certified by a registered disposal of coal refuse as allowed by performed only by a registered professional engineer. Furthermore, CSR 38–2–14.14.m. Finally, they noted professional engineer or licensed land given that the State has clarified that that the State’s emergency procedures at surveyor experienced in construction of slurry impoundments, regardless of size, CSR 38–2–14.15.m.2. are no less embankments ‘‘except all coal are subject to the requirements of CSR effective than the Federal requirements processing waste dams and 38–2–5.4.c., we find that the required at 30 CFR 816/817.81(e). embankments covered by subsection amendment at 30 CFR 948.16(vvv)(3) is Material from Outside the Permit 22.4.c. shall be certified by a registered satisfied and can be removed. Area: In its February 26, 2002, response professional engineer.’’ Upon promulgation of a final rule by State officials assured us that WVDEP The State submitted the proposed rule the State, WVDEP will be required to requires the permittee to identify the changes to the Legislature in February provide a copy of it to OSM. OSM will source of the coal refuse to be disposed 2002. However, because of a procedural review it to ensure that the language of in the backfill in addition to the error, the Legislature did not adopt the contained therein is identical to that laboratory testing. Any changes in the revised language. To correct this language which is being approved source of the coal refuse require the oversight, on April 19, 2002, WVDEP today. Any substantive differences in approval of the Secretary. The State filed these changes with the Secretary of the language will be subject to further noted that its rules at CSR 38–2– State as emergency rules. According to public review and approval by us as a 14.15.m.2. clearly require that prior State law, emergency rules can remain program amendment. approval of the Secretary is necessary
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before placing coal refuse material in alkaline addition that may be required appropriate agencies that other the backfill, regardless of where the must occur prior to placement in the emergency procedures are required to material originates. This assurance from backfill. protect the public. Subsection the State and the existing requirements In addition, CSR 38–2–14.6.b. 14.15.m.2. contains emergency at CSR 38–2–14.15.m.2. ensure that, as provides that, ‘‘[a]cid-forming or toxic- procedures that are substantively required by 30 CFR 816/817.81(b), coal forming material shall not be buried or identical to the Federal requirements at refuse from activities located outside the stored in proximity to a drainage course 30 CFR 816/817.81(e). or groundwater system.’’ Therefore, permit area must be approved by the As discussed above, we find that CSR when a toxic handling plan for the Secretary, and the approval must be 38–2–14.15.m.2. provides that the disposal of acid-forming or toxic- based on a showing that the disposal disposal of coal processing waste will be in accordance with the standards forming materials is submitted under CSR 38–2–14.15.m.2.B., the plan must outside the permit area must be set forth in CSR 38–2–14.15.m. disposed of in accordance with the Foundation Investigations: According identify whether or not a drainage standards at CSR 38–2–14.15.m., as to State officials, the part of the required course or groundwater system exists in required by 30 CFR 816/817.81(b). The program amendment relating to proximity to the burial site. If such a State’s backfilling requirements at foundation investigations is satisfied drainage course or groundwater system subsections 14.15.a. and 14.15.m. due to the requirements at CSR 38–2– exists in proximity to the burial site, the ensure that sufficient foundation 14.15.a. and 14.15.m. Those Secretary must disapprove the burial of requirements provide that the backfill the acid-producing or toxic-producing investigations, including any necessary must be designed and certified by a material at the proposed site. This laboratory testing of foundation registered professional engineer so that requirement ensures that where the coal material, will be performed prior to a minimum long-term static safety factor processing waste proposed to be placed placing any coal refuse in a backfill as of 1.3 is achieved for the final graded in the backfill contains acid- or toxic- required by 30 CFR 816/817.81(d). The slope. All stability analyses include producing materials, such materials State program provisions at CSR 38–2– properties of the material to be placed, cannot be buried or stored in proximity 14.15.m.2., CSR 38–2–14.6. and CSR properties of the foundation (whether to any drainage course such as springs 38–2–14.16.g. prohibit the burial or on solid bench or backfill) and include and seeps as required by 30 CFR 816/ storage of acid-forming or toxic-forming site conditions that will affect stability. 817.83(a) and 30 CFR 816/817.102(e). materials in the backfill in proximity to The State requirements at CSR 38–2– In addition, we note that CSR 38–2– a drainage course or groundwater 14.15.a. and 14.15.m. ensure that 14.16.g. also provides that the disposal system and ensure the protection of sufficient foundation investigations, of coal processing waste and acid- or toxic-forming material from including any necessary laboratory underground development waste in the groundwater or from infiltration into the testing of foundation material, will be mined out area of previously mined backfill as required by 30 CFR 816/ performed prior to placing any coal areas must be done in accordance with 817.83(a) and 30 CFR 816/817.102(e). refuse in a backfill as required by 30 Section 22, except that a long-term static Finally, CSR 38–2–14.15.m.2. contains CFR 816/817.81(d). safety factor of 1.3 must be achieved. emergency procedures that are no less Acid Material Handling Plan: In its Subsection 14.16.g. ensures that coal effective than the Federal emergency February 26, 2002, response WVDEP refuse placed in the backfill on procedures at 30 CFR 816/817.81(e). clarified that coal processing waste previously mined areas is protected Therefore, we find that the required cannot be placed in the backfill from groundwater by the appropriate program amendment codified at 30 CFR pursuant to CSR 38–2–14.15.m., unless use of rock drains under the backfill and 948.16(vvv)(4) relating to the disposal of it is non-acid and/or non-toxic along the highwall and from water coal refuse in the backfill has been producing or is rendered non-acid and/ infiltration into the backfill by the use satisfied and can be removed. of appropriate methods such as or non-toxic producing pursuant to 15. Subsidence Control Plan. 30 CFR subsection 14.15.m.2. diversion drains for surface runoff or encapsulation with clay or other 948.16(zzz) provides that West Virginia CSR 38–2–14.15.m.2. provides the must submit either a proposed following: material of low permeability. Subsection 14.16.g. contains requirements regarding amendment or a description of an The coal processing waste will not be the disposal of coal processing waste in amendment to be proposed, together placed in the backfill unless it has been the backfill that are no less effective with a timetable for adoption to revise demonstrated to the satisfaction of the than the Federal requirements at 30 CFR 38–2–3.12.a.1., or otherwise amend the Secretary that: West Virginia program to require that The coal processing waste to be placed 816/817.83(a) and 30 CFR 816/ based upon laboratory testing to be non-toxic 817.102(e) the map of all lands, structures, and and/or non-acid producing; or Emergency Procedures: 30 CSR 38–2– drinking, domestic and residential water An adequate handling plan including 14.15.m.2. provides that a qualified supplies which may be materially alkaline additives has been developed and registered professional engineer, damaged by subsidence show the type the material after alkaline addition is non- experienced in the design of similar and location of all such lands, toxic and/or non-acid producing. earth and waste structures, shall certify structures, and drinking, domestic and WVDEP officials stated that the rules the design of the disposal facility. If any residential water supplies within the at subsection 14.6. apply to the handling examination or inspection discloses that permit and adjacent areas, and to of all acid producing material. CSR 38– a potential hazard exists, the Secretary require that the permit application 2–14.6.a. requires that all acid-forming shall be informed promptly of the include a narrative indicating whether or toxic-forming material be handled finding and of the emergency subsidence, if it occurred, could cause and treated in accordance with the procedures formulated for public material damage to or diminish the approved toxic handling plan. protection and remedial action. If value or reasonably foreseeable use of According to State officials, all coal adequate procedures cannot be such structures or renewable resource refuse must be rendered non-toxic or formulated or implemented, the lands or could contaminate, diminish, non-acid producing before it is placed Secretary shall be notified immediately, or interrupt drinking, or residential in the backfill. Furthermore, any and the Secretary will then notify the water supplies.
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State Response evaluation of the application. As West Virginia program to require that In its May 2, 2001, submittal, the State submitted, the revised language at CSR the permit applicant pay for any amended CSR 38–2–3.12.a.1. 38–2–3.12.a.1. provides that the technical assessment or engineering concerning subsidence control plans by applicant for an underground coal evaluation used to determine the adding the words, ‘‘a narrative mining permit must provide a survey on premining quality of drinking, domestic indicating’’ to the survey and map a map that identifies structures, or residential water supplies, and to requirements of this subsection. As perennial and intermittent streams or require that the applicant provide amended, this provision requires a renewable resource lands and a copies of any technical assessment or narrative indicating whether or not engineering evaluation to the property survey, map, and a narrative indicating subsidence could cause material damage owner and to the regulatory authority. whether or not subsidence could cause or diminution of value or use of such material damage to the identified State Response structures or renewable resource lands structures and water supplies. We find both on the permit and adjacent areas In our January 15, 2002, meeting, that the addition of the words ‘‘a within an angle of draw of at least 30 WVDEP agreed to amend its program to narrative indicating’’ satisfies the degrees ‘‘unless a greater area is clarify that the permit applicant must narrative requirement codified at 30 specified by the Secretary.’’ In addition, pay for any surveys, including technical CFR 948.16(zzz). the State has revised CSR 38–2–3.12.a.2. assessments or engineering evaluations, In our January 15, 2002, meeting with to also require a survey of the quality conducted to determine the premining WVDEP, State officials agreed to modify and quantity of water supplies that quality and quantity of water supplies its permit application to ensure that the could be contaminated, diminished or and to require that copies of any identification of structures would also interrupted by subsidence ‘‘within the technical assessments or engineering indicate the type of structures being permit area and adjacent areas.’’ evaluations prepared as part of the identified. In its February 26, 2002, The State submitted the proposed rule survey be provided to the property letter, WVDEP submitted (at Attachment changes to the Legislature in February owner and the WVDEP. In its February 6) a portion of its permit application 2002. However, because of a procedural 26, 2002, letter, WVDEP submitted that it had modified to require the error, the Legislature did not adopt the language at Attachment 7 to amend CSR identification of the location and type of revised language. To correct this 38–2–3.12.a.2.B. to address this issue. structures, streams, renewable resource oversight, on April 19, 2002, WVDEP As amended, CSR 38–2–3.12.a.2.B. lands and water works. Therefore, the filed these changes with the Secretary of provides that ‘‘at the cost of the applicant must identify both the State as emergency rules. According to applicant,’’ a written report of the location and type of structures within a State law, emergency rules can remain survey ‘‘containing any technical 30-degree angle of draw. With that in effect for not more than 15 months. assessments and engineering evaluation submittal, the State has satisfied the Final legislative rules are to be adopted used in the survey’’ shall be prepared requirement that the map show the by the State during a special legislative and signed by the person or persons location and type of structures that session or during the regular 2003 who conducted the survey. The could be materially damaged by legislative session. We will review the provision also provides that copies of subsidence. We find that the revised emergency and final rules adopted by the report shall be provided to the permit application together with revised the State to ensure that the language of property owner and to the Secretary CSR 38–2–3.12.a.1. satisfy the those rules is substantively identical to The State submitted the proposed rule requirements at 30 CFR 948.16(zzz) and the language that we are approving changes to the Legislature in February can be approved. Therefore, 30 CFR today, with the exception of the 2002. However, because of a procedural 948.16(zzz) can be removed. correction of typographical and error, the Legislature did not adopt the 16. Water Supply Survey. 30 CFR grammatical errors such as the two revised language. To correct this 948.16(aaaa) provides that West Virginia noted in Finding 19. Any substantive oversight, on April 19, 2002, WVDEP must submit either a proposed differences in the language are subject to filed these changes with the Secretary of amendment or a description of an further public review as a program State as emergency rules. According to amendment to be proposed, together amendment under 30 CFR 732.17. State law, emergency rules can remain with a timetable for adoption to revise We find that the emergency rules in effect for not more than 15 months. CSR 38–2–3.12.a.2., or otherwise amend approved by West Virginia satisfy the Final legislative rules are to be adopted the West Virginia program to require requirements codified at 30 CFR by the State during a special legislative that the water supply survey required by 948.16(aaaa) and can be approved. session or during the regular 2003 CSR 38–2–3.12.a.2. include all drinking, Therefore, 30 CFR 948.16(aaaa) can be legislative session. We will review the domestic, and residential water supplies removed. Upon promulgation of a final emergency and final rules adopted by within the permit area and adjacent rule by the State, WVDEP will be the State to ensure that the language of area, without limitation by an angle of required to provide us with a copy. We those rules is substantively identical to draw, that could be contaminated, will review it to ensure that the the language that we are approving diminished, or interrupted by language contained therein is identical today, with the exception of the subsidence. to that language which is being correction of typographical and approved today. Any substantive grammatical errors such as the two State Response differences in the language will be noted in Finding 19. Any substantive In our January 15, 2002, meeting, subject to further public review and differences in the language are subject to WVDEP agreed to amend its program. approval by us. further public review as a program By letter dated February 26, 2002, 17. Presubsidence Survey. 30 CFR amendment under 30 CFR 732.17. WVDEP sent us draft language (at 948.16(bbbb) provides that West We find that, to the extent that CSR Attachment 7) that it had submitted to Virginia must submit either a proposed 38–2–3.12.a.2.B. requires the permit the State Legislature for approval. The amendment or a description of an applicant to pay for the actual technical proposed amendment clarifies that the amendment to be proposed, together assessments or engineering evaluations, State reserves the right to request with a timetable for adoption to revise these amendments satisfy the required surveys within a larger area based on 38–2–3.12.a.2., or otherwise amend the amendment codified at 30 CFR
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948.16(bbbb) and can be approved. The required program amendment the estimated cost of replacing the water Therefore, 30 CFR 948.16(bbbb) can be codified at 30 CFR 948.16(ffff) requires supply (Administrative Record No. WV– removed. Upon promulgation of a final the State to amend the West Virginia 1276). However, for clarification, rule by the State, WVDEP will be program at CSR 38–2–16.2.c.4. to be no WVDEP proposed to amend CSR 38–2– required to provide us with a copy. We less effective than the Federal 16.2.c.4. to read as follows: will review it to ensure that the regulations at 30 CFR 817.121(c)(5), 16.2.c.4. Bonding for Subsidence Damage: language contained therein is identical which provide that an extension of the The Secretary shall issue a notice to the to that language which is being 90-day abatement period may be granted permittee when subsidence related material approved today. Any substantive for one of only three reasons: that damage has occurred to lands, structures, or differences in the language will be subsidence is not complete; that not all when contamination, diminution or subject to further public review and subsidence-related material damage has interruption occurs to a domestic or occurred; or that not all reasonably residential water supply, and that the approval by us. permittee has ninety (90) days from the date 18. Extension of the 90-Day anticipated changes have occurred of notice to complete repairs or replacement. Abatement Period. 30 CFR 948.16(ffff) affecting the protected water supply. We The Secretary may extend the ninety (90) day provides that West Virginia must amend find that the State’s amendment to CSR abatement period but such extension shall CSR 38–2–16.2.c.4. or otherwise amend 38–2–16.2.c.4., as quoted above, not exceed one (1) year from the date of the the West Virginia program to be no less provides for extensions to the 90-day notice. Provided, however, the permittee effective than the Federal regulations at abatement period that are no less demonstrates in writing, and the Secretary 30 CFR 817.121(c)(5), which provide effective than those set forth in 30 CFR concurs that subsidence is not complete, that 817.121(c)(5). Therefore, the required not all probable subsidence related material that an extension of the 90-day [material damage] has occurred to lands or abatement period may be granted for program amendment at 30 CFR structures; or that not all reasonably one of only three reasons: that 948.16(ffff) has been satisfied, and it can anticipated changes have occurred affecting subsidence is not complete; that not all be removed. We are approving this the water supply, and that it would be subsidence related material damage has revision with the understanding that the unreasonable to complete repairs or occurred; or that not all reasonably State will revise subsection 16.2.c.4. and replacement within the ninety (90) day anticipated changes have occurred insert the word ‘‘damage’’ after the abatement period. If extended beyond ninety affecting the protected water supply. words ‘‘subsidence-related material’’ in (90) days, as part of the remedial measures, the third sentence to correct a the permittee shall post an escrow bond to State Response: cover the estimated costs of repairs to land typographical error. or structures, or the estimated cost to replace In its program amendment submittal 19. Bonding for Water Supply water supply. dated May 2, 2001 (Administrative Replacement. 30 CFR 948.16(gggg) Record Number WV–1209), the State provides that West Virginia must amend The State submitted the proposed rule amended CSR 38–2–16.2.c.4 regarding CSR 38–2–16.2.c.4, or otherwise amend changes to the Legislature in February bonding for subsidence damage. CSR the West Virginia program to be no less 2002. However, because of a procedural 38–2–16.2.c.4 has been revised in effective than the Federal regulations at error, the Legislature did not adopt the pertinent part as follows. 30 CFR 817.121(c)(5) by requiring revised language. To correct this additional bond whenever protected oversight, on April 19, 2002, WVDEP The director may extend the ninety (90) water supplies are contaminated, filed these changes with the Secretary of day abatement period but such extension State as emergency rules. According to shall not exceed one (1) year from the date diminished, or interrupted by of the notice. Provided, however, the underground mining operations State law, emergency rules can remain permittee demonstrates in writing, and the conducted after October 24, 1992. The in effect for not more than 15 months. director concurs that subsidence is not amount of the additional bond must be Final legislative rules are to be adopted complete, that not all probable subsidence adequate to cover the estimated cost of by the State during a special legislative related material [damage] has occurred to replacing the affected water supply. session or during the regular 2003 lands or structures; or that not all reasonably As discussed in the February 9, 1999, legislative session. We will review the anticipated changes have occurred affecting emergency and final rules adopted by the water supply, and that it would be Federal Register, 30 CFR 817.121(c)(5) unreasonable to complete repairs or requires that the permittee post the State to ensure that the language of replacement within the ninety (90) day additional bond whenever protected those rules is substantively identical to abatement period. If extended beyond ninety water supplies contaminated, the language that we are approving (90) days, as part of the remedial measures, diminished or interrupted by today, with the exception of the the permittee shall post an escrow bond to underground mining activities correction of typographical and cover the estimated costs of repairs to land conducted after October 24, 1992 are not grammatical errors such as the two or structures, or the estimated cost to replace replaced within a specified time (64 FR noted in Finding 19. Any substantive water supply. 6212–6213). However, the State rule differences in the language are subject to As discussed in the February 9, 1999, limited this requirement to water further public review as a program Federal Register notice, the State’s rule supplies that are affected by subsidence amendment under 30 CFR 732.17. at subsection 16.2.c.4. provided for an whereas the Federal rule applies this As proposed, the emergency rules at extension to the 90-day abatement requirement to all water supplies subsection 16.24.c.4. require additional period (64 FR 6212–6213). However, it affected by underground mining bond whenever domestic or residential allowed an extension if the permittee operations in general. water supplies are contaminated, demonstrates that it would be diminished, or interrupted by unreasonable to complete repairs within State response underground mining operations, not just the 90-day abatement period. Because In its February 26, 2002, submission, by subsidence. In addition, the amount Federal rules limit the circumstances WVDEP officials stated that additional of the additional bond must be adequate under which an extension to the 90-day bond would be required whenever a to cover the estimated cost of replacing abatement period can be granted, it protected water supply is contaminated, the affected water supply. Therefore, we appeared that operators in West Virginia diminished, or interrupted by find that proposed 30 CSR 38–2– could get extensions to the abatement underground mining, and the amount of 16.24.c.4. is no less effective than the period for additional reasons. bond to be posted would be based on Federal requirements at 30 CFR
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817.125(c)(5). The proposed revisions 16.2.c.4. by (1) replacing ‘‘director’’ with investigation. Furthermore, exact dates satisfy the required amendment at 30 ‘‘Secretary,’’ (2) replacing ‘‘that’’ with that damage occurred may be unknown CFR 948.16(gggg), which we are ‘‘when’’ in the first sentence or difficult to establish, particularly for removing. Upon promulgation of a final immediately after the word ‘‘permittee,’’ damage to land and damage that occurs rule by the State, WVDEP will be and (3) adding the words ‘‘when in a gradual fashion. The cause of a required to provide a copy to us. We contamination, diminution or water supply loss can be extremely will review it to ensure that it is interruption occurs to a domestic or difficult to ascertain, especially when substantively identical to the language residential’’ before ‘‘water supply’’ in the loss occurs near a mine during being approved today. Any substantive the first sentence. As amended, CSR 38– adverse climatic conditions. Like the differences in the language will be 2–16.2.c.4. provides that the Secretary Federal rule, the State rule establishes a subject to further public review and shall issue a notice to the permittee deadline for posting additional bond approval by us. We are approving this when subsidence-related material and a 90-day grace period to encourage revision with the understanding that the damage has occurred to lands [or] prompt repair or replacement. The State State will revise subsection 16.2.c.4. to structures, or when contamination, rule requires issuance of notice to a replace the comma between ‘‘lands’’ and diminution or interruption occurs to a permittee ‘‘when’’ damage occurs, ‘‘structures’’ in the first sentence with domestic or residential water supply, which we interpret as obligating the ‘‘or’’ and to correct the spelling of the and that the permittee has ninety (90) State to (1) conduct prompt word ‘‘material’’ and insert the word days from the date of notice to complete investigations upon receiving a damage ‘‘damage’’ after the words ‘‘subsidence- repairs or replacement. complaint and (2) issue a notice as soon related material’’ in the third sentence As discussed in the February 9, 1999, as the investigation is completed. The as shown above. Federal Register, CSR 38–2–16.2.c.4. permittee would be required to post the 20. Timetable for Posting Bond for originally differed from its Federal additional bond upon notification by Subsidence-Related Material Damage counterpart at 30 CFR 817.121(c)(5) in the State if the damage cannot be and Damaged Water Supplies. 30 CFR that the State rule provided that the 90- corrected within 90 days. In addition, 948.16(hhhh) provides that West day period during which no bond need West Virginia has an alternative Virginia must submit either a proposed be posted began with the issuance of a bonding system approved under 30 CFR amendment or a description of an notice of violation to the permittee, 800.11(e), which means that any amendment to be proposed, together rather than with the date of occurrence reclamation obligations not covered by with a timetable for adoption to amend of damage (64 FR 6212–6213). As a permittee’s site-specific bond are the CSR 38–2–16.2.c.4., or to otherwise amended, the 90-day grace period in the responsibility of the Special amend the West Virginia program, to be State rule continues to commence upon Reclamation Fund. Therefore, we find no less effective than the Federal issuance of a notice (although the notice that the State rule is no less effective regulations at 30 CFR 817.121(c)(5), by is no longer a notice of violation), not than the Federal rule, and that it requiring that the 90-day period before the date of occurrence of the damage. satisfies the requirements of 30 CFR which additional bond must be posted For the reasons discussed below, we no 948.16(hhhh), which we are removing. begin to run from the date of occurrence longer believe that the State must The State submitted the proposed rule of subsidence-related material damage. amend its rule to provide that the grace changes to the Legislature in February State Response period begins on the date of occurrence 2002. However, because of a procedural of the damage. error, the Legislature did not adopt the In a program amendment submittal The preamble to the Federal rule dated May 2, 2001 (Administrative revised language. To correct this contains the following explanation of its oversight, on April 19, 2002, WVDEP Record Number WV–1209), the State basis and intent: amended CSR 38–2–16.2.c.4. to read as filed these changes with the Secretary of follows: The current rules at 30 CFR Part 800 State as emergency rules. According to already require the permittee to adjust the State law, emergency rules can remain 16.2.c.4. Bonding for Subsidence Damage: amount of the bond when the costs of future in effect for not more than 15 months. The director shall issue a notice to the reclamation increase or when a reclamation Final legislative rules are to be adopted permittee that subsidence related material obligation is established; for example, when damage has occurred to lands, structures, or material damage from subsidence occurs. The by the State during a special legislative water supply, and that the permittee has final rule is intended to avoid incomplete session or during the regular 2003 ninety (90) days from the date of notice to reclamation by clarifying the application to legislative session. We will review the complete repairs or replacement. The actual subsidence damage of the requirement emergency and final rules adopted by director may extend the ninety (90) day in 30 CFR 800.15(a) that the regulatory the State to ensure that the language of abatement period but such extension shall authority specify a period of time or a set those rules is substantively identical to not exceed one (1) year from the date of the schedule to increase the amount of bond the language that we are approving notice. Provided, however, the permittee when the cost of reclamation changes. Thus, demonstrates in writing, and the director this provision assures that funds are available today, with the exception of the concurs that subsidence is not complete, that in a timely fashion to cover the cost of repairs correction of typographical and not all probable subsidence related material in case of default by the permittee and to grammatical errors such as the two [damage] has occurred to lands or structures; encourage prompt repair through the use of noted in Finding 19. Any substantive or that not all reasonably anticipated changes a grace period. differences in the language are subject to have occurred affecting the water supply, and 62 FR 16742, col. 1, March 31, 1995. further public review as a program that it would be unreasonable to complete amendment under 30 CFR 732.17. repairs or replacement within the ninety (90) While the Federal rule includes no day abatement period. If extended beyond provision for notice to the permittee, we 21. Recreational Facilities Use. 30 ninety (90) days, as part of the remedial find that the notice provision is both CFR 948.16(iiii) provides that West measures, the permittee shall post an escrow equitable and a practical means of Virginia must submit either a proposed bond to cover the estimated costs of repairs implementing this requirement. The amendment or a description of an to land or structures, or the estimated cost to preamble quoted above indicates that amendment to be proposed, together replace water supply. we did not intend for the rule to apply with a timetable for adoption, to: On February 26, 2002, WVDEP before a reclamation obligation is Amend the term ‘‘recreational uses’’ proposed to further amend CSR 38–2– established, which often requires some at W. Va. Code 22–3–13(c)(3) to mean
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‘‘recreational facilities use’’ at SMCRA required program amendment codified do not apply to the extraction of section 515(c)(3). at 30 CFR 948.16(jjjj) and can be minerals by underground mining approved. In addition, we are removing methods. State Response the required program amendment We find that this amendment has In our January 15, 2002, meeting with codified at 30 CFR 948.16(jjjj). removed the offending language and the WVDEP, WVDEP asserted that when 23. Preblast Survey Requirements. 30 satisfies the required program the West Virginia law and rules are read CFR 948.16(kkkk) provides that West amendment codified at 30 CFR together, they are no less stringent than Virginia must submit either a proposed 948.16(llll). Therefore, we are approving SMCRA at section 515(c)(3). In addition, amendment or a description of an the amendment and deleting the by letter dated February 26, 2002, amendment to be proposed together required amendment at 30 CFR WVDEP stated that neither State code with a timetable for adoption, to remove 948.16(llll). nor State rules define the term ‘‘public the words ‘‘upon request’’ at W. VA. 25. Blasting Requirements. 30 CFR facility including recreational land use.’’ Code 22–3–13a(g), or otherwise amend 948.16(mmmm) provides that West Furthermore, WVDEP provided the its program to require that a copy of the Virginia must submit either a proposed following policy statement to address pre-blast survey be provided to the amendment or a description of an this required amendment. owner and/or occupant even if the amendment to be proposed, together with a timetable for adoption, to remove It is the state position that the term ‘‘public owner or occupant does not specifically facility including recreational land use,’’ request a copy. the phrase ‘‘of overburden and coal’’ from W.Va. Code 22–3–30a(a), or to implies structures or other significant State Response developments that the public is able to use, otherwise clarify that its general surface or that confer some type of public benefit. In the amendment submitted by letter coal mining blasting laws and Depending upon individual circumstances, dated November 28, 2001, concerning regulations apply to all blasting at this term may include schools, hospitals, blasting, the State amended the W. Va. surface coal mining and reclamation airports, reservoirs, museums, and developed Code at 22–3–13a(g) by revising operations and surface blasting recreational sites such as picnic areas, language concerning the availability of activities incident to underground coal campgrounds, ballfields, tennis courts, the preblast survey. As amended, the mining, including, but not limited to, fishing ponds, equestrian and off-road office of explosives and blasting shall initial rounds of slopes and shafts. vehicle trails, and amusement areas, together provide a copy of the preblast survey to with any necessary supporting infrastructure State Response such as parking lots and rest facilities. In the owner or occupant. Prior to this general, those sites with a public or public amendment, the office was only In the amendment submitted by letter facility postmining land use will provide the required to notify the owner or occupant dated November 28, 2001, concerning public with access as a matter of right on a of the location and availability of a copy blasting, the State amended W. Va. Code non-profit basis. Facilities that meet a public of the preblast survey. 22–3–30a(a) by deleting the words ‘‘of need, like water supply reservoirs and As amended, W. Va. Code 22–3– overburden and coal.’’ As amended, W. publicly owned prisons, and facilities that 13a(g) is rendered consistent with 30 Va. Code 22–3–30a(a) provides that provide a benefit, like flood control CFR 817.62(d) which requires that a blasting shall be conducted in structures and institutions of higher copy of the preblast survey be provided accordance with the rules and laws education, also qualify, even if they are not to the person who requested the survey. established to regulate blasting. readily accessible to all members of the We find that this revision has public or completely non-profit. Therefore, the amendment can be approved. This amendment satisfies the removed the offending language and We find that the state policy quoted required program amendment codified satisfies the required program above renders the term ‘‘recreational at 30 CFR 948.16(kkkk) which can, amendment codified at 30 CFR uses’’ at W. Va. Code 22–3–13(c)(3) will therefore, be removed. 948.16(mmmm). Therefore, we are always include facilities. Therefore, that 24. Preblast Survey Requirements. 30 approving the amendment and deleting term is no less stringent than the term CFR 948.16(llll) provides that West the required amendment at 30 CFR ‘‘recreational facilities use’’ at SMCRA Virginia must submit either a proposed 948.16(mmmm). section 515(c)(3) and can be approved. amendment or a description of an 26. Removal of Abandoned Coal For this reason, we find that the amendment to be proposed, together Refuse. 30 CFR 948.16(nnnn) provides required amendment codified at 30 CFR with a timetable for adoption, to remove that West Virginia must submit either a 948.16(iiii) is satisfied and can be the phrase ‘‘or the surface impacts of the proposed amendment or a description of deleted. underground mining methods’’ from an amendment to be proposed, together 22. Forfeiture of Bonds. 30 CFR 22–3–13a(j)(2), or otherwise amend its with a timetable for adoption to either 948.16 (jjjj) provides that West Virginia program to clarify that the surface delete CSR 38–2–3.14 or revise CSR 38– must remove the words ‘‘other blasting impacts of underground mining 2–3.14 to clearly specify that its responsible party’’ at CSR 38–2–12.4.e. operations are subject to the provisions apply only to activities that State Response requirements of 22–3–13a. do not qualify as surface coal mining operations as that term is defined in 30 In the program amendment submittal State Response CFR 700.5; i.e., that subsection 3.14 dated May 2, 2001, the State revised In the amendment submitted by letter does not apply to either the removal of CSR 38–2–12.4.e. by deleting the words, dated November 28, 2001, concerning abandoned mine waste piles that, on ‘‘or other responsible party.’’ As blasting, the State amended W. Va. Code average, meet the definition of coal or to amended, this provision is as follows: 22–3–13a(j) by revising language the on-site reprocessing of coal mine 12.4.e. The operator or permittee shall be concerning applicability of section W. waste piles. If the State chooses the liable for all costs in excess of the amount Va. Code 22–3–13a. Among its changes second option it must submit a forfeited. The Director may commence civil, to this section, the State deleted the sampling protocol that will be used to criminal or other appropriate action to collect phrase ‘‘or the surface impacts of the determine whether the refuse piles meet such costs. underground mining methods.’’ As the definition of coal. The protocol must We find that the deletion of the words amended, section 22–3–13a(j) provides be designed to ensure that no activities ‘‘or other responsible party’’ satisfies the that the provisions of section 22–3–13a meeting the definition of surface coal
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mining operations escape regulation coal mining operations as the term is (Administrative Record Number WV– under the West Virginia Surface Coal defined at 30 CFR 700.5, it needed to 1280). In that amendment, the State Mining and Reclamation Act. submit a sampling protocol to determine submitted a revision to Attachment 8. when a coal refuse pile would meet the The revised policy is identical to the State Response definition of coal (Administrative one described above, except for the last In its program amendment submittal Record Number WV–1271). The paragraph regarding the calculation of dated May 2, 2001, the State amended sampling protocol must be designed to average BTU values. The revised policy CSR 38–2–3.14.a., regarding the removal ensure that no activities meeting the provides the following: of abandoned coal refuse piles, by definition of surface coal mining Calculation of the average BTU value of the changing the proviso concerning the operations escape regulation under the pile will be based on samples taken in a minimum BTU value standard of refuse State counterpart to SMCRA and the minimum of five different, uniformly material to be classified as coal. As Federal regulations. WVDEP also distributed locations. The number and amended, subsection 3.14.a. now needed to select and submit the BTU spacing of sampling locations should be take provides for: standard that it would use to determine into account variability of the material in short distances. ‘‘* * * the removal of abandoned coal the difference between coal and non- processing waste piles; provided that, if the coal. The ASTM criteria should be used As amended, CSR 38–2–3.14.a. average quality of the refuse material meets to determine the BTU value of a sample. requires the submittal of a surface the minimum BTU value standards to be WVDEP agreed to provide us a sampling mining permit application for the classified as coal, as set forth in ASTM protocol and to set the BTU value for removal of existing abandoned coal standard D 388–99, and if not AML eligible, processing waste piles if the average a permit application which meets all coal to ensure that these projects are not applicable requirements of this rule shall be surface coal mining operations. The quality of the refuse material meets the required.’’ WVDEP acknowledged that since there minimum BTU value standards to be is only bituminous coal in West classified as coal, as set forth in ASTM Prior to this amendment, the words standard D 388–99 and if not AML ‘‘and if not AML eligible’’ did not Virginia, it would use a BTU value for bituminous coal from the ASTM eligible. In addition, the State has appear in subsection 3.14.a, and the established a sampling protocol through subsection did not require the submittal standard. On February 26, 2002, WVDEP sent us its policy described above that will be of a permit application if the refuse used to determine whether abandoned material met the minimum BTU value to another program submission (Administrative Record Number WV– coal refuse piles meet the definition of be classified as coal. coal. As provided by 30 CFR 700.5, coal As discussed in the May 5, 2000, 1276). In that submission, WVDEP was noted that: is defined to mean combustible Federal Register, we approved carbonaceous rock, classified as subsection 3.14 to the extent that it WVDEP included the words ‘‘and if not anthracite, bituminous, subbituminous AML eligible’’ to allow for the removal of would apply to the removal of or lignite by ASTM Standard D 388–77. abandoned coal mine refuse pile where, abandoned coal refuse piles under AML enhancement requirements. The State has The sampling protocol is designed to on average, the material to be removed ensure that no activities meeting the did not meet the definition of coal at 30 developed a sampling protocol and set the BTU value for coal (Attachment 8). definition of surface coal mining CFR 700.5 (65 FR 26131). In addition we operations escape regulation under the Attachment 8 contains a draft policy did not approve subsection 3.14 to the approved State regulatory program. entitled, ‘‘Removal of Abandoned Coal extent that it could be interpreted as Furthermore, through the ASTM Refuse Piles’’ and provides the applying to the on-site reprocessing of standard for coal at D 388–99, the State following: abandoned coal refuse piles. However, has established a minimum BTU value we noted that the removal of abandoned The Secretary may issue a reclamation and/or ash content to be used in coal processing piles may qualify for the contract, in accordance with 38–2–3.14, determining when coal refuse material government-financed construction solely for the removal of existing abandoned does not constitute coal as that term is requirement under section 528(2) of coal processing waste piles; only if the defined at 30 CFR 700.5. SMCRA. CSR 38–2–3.31 is the approved average quality of the refuse material does We find that, because revised CSR 38– State regulation governing government- not meet the minimum BTU value standards to be classified as coal and/or has a percent 2–3.14.a. and the proposed State policy financed construction within the State. ash value of greater than 50, as set forth in clearly specify that their provisions We amended the Federal definition of ASTM standard D 388–99. apply only to activities that do not government-financed construction on Refuse material that does not meet qualify as surface coal mining February 12, 1999, to provide that minimum BTU value standards to be operations as that term is defined in 30 government funding of less than 50 classified as coal means; a pile of waste CFR 700.5, the required amendment at percent of a project’s cost may qualify products of coal mining, physical coal 30 CFR 948.16(nnnn) has been satisfied, if the construction is undertaken as an cleaning, and coal preparation operations and it can be removed. approved abandoned mine reclamation (e.g. culm, gob, etc.) containing coal, matrix At this time, we are only approving project under Title IV of SMRCA (64 FR material, clay, and other organic and the phrase, ‘‘and if not AML eligible’’ at inorganic material in which the material in 7469–7483). However, because the West the pile has a calculated average BTU value CSR 38–2–3.14.a. to the extent that it Virginia program lacks counterparts to less than 10,500. would exempt reclamation projects the revised Federal definition of Calculation of the average BTU value of the approved under West Virginia’s ‘‘government-financed construction,’’ pile will be based on the average of five abandoned mine land reclamation we concluded that the exemption is not minimum samples taken in different and program that corresponds to Title IV of available to West Virginia projects with uniformly distributed locations. The number SMCRA. We are interpreting the less than 50 percent government and spacing of sampling locations shall be WVDEP’s February 26, 2002, policy financing. taken into account variability of the material statement as a commitment to restrict In our January 15, 2002, meeting, we in short distances. the scope of this phrase in this manner. stated that because the State chose to On March 8, 2002, WVDEP submitted Furthermore, as noted above, until the clarify that subsection 3.14 does not revisions to its program amendment State revises its government-financed apply to activities that qualify as surface submission of February 26, 2002 construction requirements at CSR 38–2–
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3.31, WVDEP cannot allow for the consistent with the Federal Act.’’ conflict between the federal and state removal of abandoned coal refuse piles Canestraro, 374 S.E.2d at 321 (West provisions, the less restrictive state under an approved abandoned mined Virginia Administrative Record No. provision must yield to the more land project that is less than 50 percent WV–761). See also Schlutz, supra (State stringent federal provision * * *’’ government financed. regulation enacted pursuant to the West Canestraro, supra. Furthermore, State 27. Coal Removal Incidental to Virginia Surface Coal Mining and rules must be read in a manner Development. 30 CFR 948.16(oooo) Reclamation Act , W. Va. Code 22A–3– consistent with Federal regulations, provides that West Virginia must submit 1 to 40 (1993), [now W. Va. Code 22– Schultz, supra. either a proposed amendment or a 3–1 to 32 (1994 and Supp.1995)], must Given the State’s commitment not to description of an amendment to be be read in a manner consistent with implement the disapproved regulatory proposed, together with a timetable for Federal regulations enacted in provisions at CSR 38–2–23, as adoption to remove CSR 38–2–23. accordance with the Surface Mining demonstrated by its actions in DK Excavating, and because of the State response: Control and Reclamation Act, 30 U.S.C. 1201 to 1328 (1986)). principles established in Canestraro, WVDEP proposed to delete the incidental Also noted above in Finding 7, the Schultz, and DK Excavating, we mining requirements at section 23 during the West Virginia Supreme Court of conclude that the required amendment 2001 regular legislative session. However, the Appeals also held in Schultz that no at 30 CFR 948.16(oooo) is no longer WVDEP Advisory Council recommended that change in a State surface mining law or needed because the concerns contained the proposed deletion be removed from the final rule change. regulation can take effect for purposes of in that required amendment have been a State program until approved by OSM, satisfied. Therefore, we are removing it. As discussed in the May 5, 2000, and State surface mining reclamation However, to avoid further confusion or Federal Register, we disapproved regulations must be read in a manner misinterpretation of its approved State proposed regulatory provisions at CSR consistent with Federal regulations regulatory program, we recommend that 38–2-23 (65 FR 26133). As proposed, enacted in accordance with SMCRA, the State remove CSR 38–2–23. CSR 38–2–23 would allow special Schultz, 475 S.E.2d 467. 28. Bond Release and Premining authorization for coal extraction as an (Administrative Record Number WV– Water Quality. 30 CFR 948.16(pppp) incidental part of development of land 1038). provides that West Virginia must submit for commercial, residential, or civic use. Finally, and as noted above, in DK either a proposed amendment or a The new requirements would allow Excavating, supra, the West Virginia description of an amendment to be lesser standards for coal extraction Supreme Court of Appeals reversed a proposed, together with a timetable for conducted as an incidental part of land lower State Circuit Court ruling which adoption, to remove CSR 38–2–24.4. development. In disapproving these provided that coal extraction authorized State Response provisions, we noted that on February 9, as an incidental part of land 1999, we had found similar statutory development did not come within the In its program amendment submittal provisions at W. Va. Code 22–3–28(a) State’s definition of surface mining. The dated May 2, 2001, the State amended through (c) to be less stringent than Supreme Court found that, ‘‘Once a state CSR 38–2–24.4., regarding requirements sections 528 and 701(28) of SMCRA, plan is approved under the federal to release bonds, by deleting language and therefore, unapprovable (64 FR Surface Mining Control and concerning an exception to the 6201–6204). In our disapproval, we Reclamation Act, any subsequent requirements to release bonds, and by stated that we are bound by the amendments to such plan do not adding a new proviso concerning constraints of SMCRA which does not become effective until approved by the revegetation (Administrative Record provide a blanket exemption from the federal Office of Surface Mining, and Number WV–1209). As amended, definition of surface mining operation may not be approved by the Office of subsection 24.4 reads as follows: for privately financed construction as Surface Mining if inconsistent with the 24.4. Requirements to Release Bonds. Bond proposed by the State. Surface Mining Control and release for remining operations shall be in In our January 15, 2002, meeting, and Reclamation Act.’’ Id. Also, ‘‘Since the accordance with all of the requirements set in its resubmission of February 26, Office of Surface Mining has concluded forth in subsection 12.2 of this rule; Provided 2002, WVDEP acknowledged that the that the amendment to our state plan, that there is no evidence of a premature provisions at CSR 38–2–23 have been codified as West Virginia Code § 22–3– vegetation release. disapproved by OSM, and that West 3(u)(2)(ii) (1997) (Repl.Vol.1998), is In the May 5, 2000, Federal Register, Virginia is not implementing them, as inconsistent with the Surface Mining at Finding 9, we disapproved the recently evidenced by the West Virginia Control and Reclamation Act, that predecessor to amended subsection 24.4 Supreme Court decision in DK proposed amendment cannot be deemed in part because the U.S. Environmental Excavating, Inc. v. Michael Miano, as an amendment to the approved West Protection Agency (EPA) declined to Director, WVDEP, 209 W.Va. 406, 549 Virginia surface mining plan.’’ Id. concur with the approval of CSR 38–2– S.E.2d 280 (2001) (Administrative We have previously ruled that West 24.4 due to its inconsistency with Record Number WV–1292). Virginia’s incidental mining section 301(p) of the Clean Water Act (Administrative Record Nos. WV–1271 requirements cannot be approved, (CWA) (65 FR 26133). Under section and WV–1276). because they are inconsistent with 301(p) of the CWA, the State may issue As noted above in Finding 7, the West sections 528 and 701(28) of SMCRA. In a National Pollutant Discharge Virginia Supreme Court of Appeals in addition, we required that the West Elimination System (NPDES) permit Canestraro v. Faerber ruled that, ‘‘When Virginia program be further amended by which modifies the pH, iron, and a provision of the West Virginia Surface removing CSR 38–2–23. As discussed manganese standards for preexisting Coal Mining and Reclamation Act, above, WVDEP is committed to not discharges from the remined area or W.Va. Code 22A–3–1 et seq., is implementing the disproved provisions affected by a qualifying remining inconsistent with Federal requirements at CSR 38–2–23. This commitment operation. However, the permit may not in the Surface Mining Control and complies with the mandate of the West allow the pH, iron, or manganese levels Reclamation Act, 30 U.S.C. § 1201 et Virginia Supreme Court of Appeals, of any discharge to exceed the levels seq., the State Act must be read in a way which has held that ‘‘when there is a being discharged from the remined area
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before the advent of the coal remining CFR Part 434 to establish a coal economic future. There must be specific operation. remining subcategory that will address standards for operators to follow. Section 301(p), however, does not preexisting discharges at coal remining In response, we disagree that apply to all remining operations. operations in the Appalachian and mid- guidance documents cannot be part of Instead, section 301(p) defines ‘‘coal continent coal regions of the eastern an approved State program. Any remining operation’’ to mean a coal United States (67 FR 3370–3410). The changes in laws, rules, policies, or mining operation which begins after new guidelines are to provide incentives guidance documents that make up an February 4, 1987 (the date of enactment for remining abandoned coal sites. approved State program are subject to of section 301(p), at a site on which coal According to EPA, under the new rules, public review and comment and require mining was conducted before August 3, remining operations will be required to OSM approval. As discussed in Finding 1977 (the effective date of SMCRA). EPA implement strategies that control 2, WVDEP chose to include its declined to concur with approval with pollutant releases and ensure the productivity success standards and the the CSR 38–2–24.4 because that pollutant discharges during remining statistical sampling techniques for subsection would allow use of the activities are less than the pollutant measuring the success of ground cover, section 301(p) standards for remining levels released from the abandoned site stocking, and production in a policy operations that began prior to February prior to remining. Upon completion, the that will be included in its Inspection 4, 1987, and for sites on which coal operators will reclaim the land to meet and Enforcement Handbook. As mining was originally conducted on or the same standards currently imposed required by CSR 38–2–9.3.d. and 9.3.e., after August 3, 1977. on active mining areas. EPA believes only after the applicable success As discussed in our May 5, 2000, that the new guidelines will provide standards have been met and verified by Federal Register decision, we noted that operators with greater certainty about inspectors with the use of the approved 30 CFR 816.42 and 817.42 require that environmental requirements for statistical sampling methods can the discharges of water from areas disturbed remining operations. As mentioned in State approve Phase II or III bond by surface mining activities must its letter of April 10, 2002 release. For the reasons set forth in comply with all applicable State and (Administrative Record Number WV– Finding 2, we have determined that Federal water quality laws and 1294), EPA stated that it expects that State’s proposed policy entitled regulations. Because CSR 38–2–24.4 was WVDEP will be submitting regulations ‘‘Productivity and Ground Cover inconsistent with those requirements, in the near future to comply with the Success Standards’’ as set forth as we required its removal. new remining requirements at 40 CFR Attachment 1 in its March 8, 2002, letter The State has not deleted CSR 38–2– 434 Subpart G. (Administrative Record Number WV– 24.4 in its entirety, but it has deleted the 1280) is no less effective than the offending language. In effect, CSR 38–2– IV. Summary and Disposition of Federal requirements at 30 CFR 816.116 24.4 now requires that bond release for Comments and 817.116. Therefore, the required remining operations must comply with Public Comments amendment at 30 CFR 948.16(dd) has the requirements of CSR 38–2–12.2 been satisfied and can be removed. concerning replacement, release, and A. We asked for public comments on 2. 30 CFR 948.16(ee). WVHC stated forfeiture of bonds. Subsection CSR 38– the State’s initial amendment in the that the State cites to less effective 2–12.2.e. provides that no bond release Federal Register on January 3, 2001 (66 portions of its approved program and its or reduction will be granted if, at the FR 335) (Administrative Record Number guidance documents. The State cannot time, water discharged from or affected WV–1194). By letter dated February 28, rely on mere guidance documents, by the operation requires chemical or 2001 (Administrative Record Number WVHC asserted, as a way to circumvent passive treatment in order to comply WV–1202) the West Virginia Highlands the public notice and comment process with applicable effluent or water quality Conservancy (WVHC) responded with established by Congress. If the State standards; or long-term water treatment the following comments. could rely on these guidance is provided for under subsections documents, there would be no stable 1. 30 CFR 948.16(dd). WVHC stated 12.2.e.1. or 12.2.e.2. By requiring State program, and operators and the that the State program is narrower and compliance with ‘‘applicable effluent public would be subject to the whims of limitations or water quality standards,’’ less effective than the Federal program. WVDEP, WVHC asserted. In any event, CSR 38–2–12.2.e requires compliance Whereas the Federal standards are the provisions that the State relies on with the State’s water quality specific and somewhat detailed, the are less effective than the Federal requirements, including section 301(p) State program is not. WVHC stated that requirements. of the CWA. Furthermore, in our the rules the State references are not In response, again, we must disagree January 15, 2002, meeting with WVDEP, even part of the approved program. The that guidance documents cannot be a State officials clarified that the addition State effectively admits, WVHC part of an approved State program. of the proviso concerning premature asserted, that its program is deficient by These documents are subject to the vegetation release is intended to ensure relying on weak guidance documents to same review and approval standards as that there are no premature vegetation plug the holes in its approved program. laws or regulations. As provided by 30 releases on remining operations Even if its Technical Handbook were CFR 948.16(ee), WVDEP was required to (Administrative Record Number WV– as effective as the Federal requirements, submit documentation that it had 1271). WVHC stated, the State could not rely consulted with NRCS with respect to For the reasons discussed above, we on the Technical Handbook as part of its the nature and extent of its prime find that the amended provision approved program since it can change farmland reconnaissance inspections satisfies the required amendment at 30 such guidance documents at any time required by CSR 38–2–10.2 and CFR 948.16(pppp) and can be approved. without notice to OSM or the public. obtained the concurrence of NRCS Therefore, we are removing the required WVHC stated that all portions of the regarding its negative determination amendment. approved State program must be criteria at CSR 38–2–10.2. WVDEP On January 23, 2002, EPA announced codified in statute or legislative rule. submitted a letter to NRCS on February in the Federal Register that is was These productivity rules are central to 25, 2002 (Administrative Record amending its current regulations at 40 proper reclamation, and to the State’s Number WV–1276, Attachment 1A),
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outlining its requirements and control structures be certified as having have concluded that (nnn) has been procedures regarding prime farmlands been built in accordance with the satisfied. and seeking specific concurrence with detailed designs submitted and 7. 30 CFR 948.16(ooo). The respect to reconnaissance inspections approved pursuant to CSR 38–2–3.6.h.4 commenter stated that the State program and its negative determination criteria. for the following reasons. CSR 38–2– is less effective than the Federal As discussed in Finding 3, on March 7, 3.6.h.4. requires that detailed design program and the State must amend the 2002, NRCS responded (Administrative plans for a structure be certified and program. The commenter further stated Record Number WV–1290) and approved before construction begins. that the WVDEP admits that its citation concurred with the State’s prime CSR 38–2–5.4.b.1. provides that such is wrong and that it must be changed. farmland requirements. Therefore, the structures be constructed in accordance In response, as discussed above in required amendment at 30 CFR with those plans. CSR 38–2–5.4.d.1. Finding 8, we are removing this 948.16(ee) has been satisfied and can be requires that prior to any surface mining required amendment because we have removed. activities in the component drainage previously disapproved the provision 3. 30 CFR 948.16(oo). WVHC stated area, the controlling structures must be that is the subject of the required that OSM must not remove this certified as to construction in amendment, and because of the requirement since it has promulgated a accordance with the plans. principals established in Canestraro, we Federal regulation requiring these We have also determined that the concluded that (ooo) has been satisfied. standards to prevent failure, flooding State program has satisfied the part of 8. 30 CFR 948.16(sss). The commenter and erosion. OSM’s standard has been the required amendment that requires stated that the State’s provision is subject to a public notice and comment as-built plans be reviewed and approved clearly less effective than Federal law process, and is necessary to protect by the regulatory authority as permit and does not require action by the communities and the environment from revisions for the following reasons. In operator to remedy the damage it may storms, the WVHC asserted. Any lesser its submittal, WVDEP stated that for do to citizens’ property value related to standard is not as effective as Federal structures with major design changes, a water supply. The commenter further law WVHC stated. permit revision would be necessary. stated that operators must be forced to In response, as discussed in Finding WVDEP further clarified that minor pay for any damage they do to citizens’ 4, WVDEP proposed modifications to its design changes are those within the water use or potential water use that spillway design requirements at CSR construction tolerances described in affects the value of the citizen’s 38–2–5.4.b.8 on February 26, 2002 CSR 38–2–3.35. Therefore, major design property. (Administrative Record Number 1276). changes are those that exceed the In response, as discussed above in Under the proposed State standard, the construction tolerances. We have Finding 10, we have previously ruled spillways of all sediment control concluded that sediment control that West Virginia’s water replacement structures, except for haulroads, must be structures that are constructed with only waiver provisions could not be designed to safely pass a 25-year, 24- minor design changes as described approved ‘‘to the extent’’ * * * [i]t hour precipitation event. The proposed above are, in effect, built to the would not be implemented in rule at CSR 38–2–5.4.b.8. is no less standards of the approved, certified accordance with the definition of effective than the Federal requirements designs in the preplan. ‘‘Replacement of water supply’’ at 30 at 30 CFR 816/817.46(c)(2)(ii)(B). 5. 30 CFR 948.16(mmm). WVHC CFR 701.5. Because of the State’s Therefore, the required amendment at stated that the State program has commitment to comply with the more 30 CFR 948.16(oo) has been satisfied completely confused the variance restrictive Federal waiver requirement, and can be removed. procedures of steep slope mining and and because of the principles 4. 30 CFR 948.16(tt). WVHC stated mountaintop removal mining. There are established in Canestraro and Schultz, that the State submission improperly many differences in the Federal program we conclude that the required relies on guidance documents and is, in that must be part of the State program, amendment at 30 CFR 948.16(sss) has any event, less protective than the WVHC stated. For example, WVHC been satisfied. Federal program. stated, the steep slope variance is not 9. 30 CFR 948.16(vvv)(1) through (4). In response, the Federal regulations at available for agricultural variances. The commenter stated that all three 30 CFR 732.17 concerning State Accordingly, the State provisions are parts of this provision the State proposal program amendments states, at less effective than Federal requirements is not as effective as Federal law and paragraph (a), that 30 CFR 732.17 and must be rejected, WVHC stated. must be rejected, particularly as it relies applies to ‘‘any alteration of an In response, this required program on guidance documents rather than on approved State program.’’ If a State amendment was previously satisfied properly adopted rules or statutes. regulatory authority submits a policy, and removed. See the October 1, 1999, These provisions, the commenter stated, technical guidance, or written statement Federal Register (64 FR 53200, 53201 are especially important given the as a means of rendering the State and 53203). potential for damage associated with program no less effective than the 6. 30 CFR 948.16(nnn). The refuse fills. All requirements must be Federal regulations, that policy, commenter stated that WVDEP admits scrupulously observed, the commenter technical guidance, or written that its program is deficient in regard to stated. statement, if approved by OSM, this amendment and OSM must In response, as discussed above in becomes part of the approved State continue to require the State to amend Findings 11, 12, 13, and 14, we program. If, after approval by OSM, the its program so that it is as effective as determined that the proposed or policy, technical guidance, or written Federal law. existing State requirements were no less statement subsequently changed, it In response, as discussed above in effective than the Federal requirements should be submitted to OSM as a State Finding 7, we are removing this with regard to restoring the land to program amendment. required amendment because we have AOC, certification of haulroads, As discussed above in Finding 5, we previously disapproved the provision applicability of subsection 5.4.c to have determined that the State program that is the subject of the required slurry impoundments, and placement of has satisfied the part of the required amendment, and because of the coal refuse in the backfill, respectively. amendment that requires all sediment principals established in Canestraro, we Therefore, the required amendments at
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30 CFR 948.16(vvv) (1), (2), (3) and (4) required amendment at 30 CFR mining regulatory program with have been satisfied and can be removed. 948.16(bbbb) has been satisfied. numerous required amendments. Some 10. 30 CFR 948.16(zzz). The 13. 30 CFR 948.16(iiii). The of these amendments were truly commenter stated that none of the commenter stated that the current State warranted in order for the State program State’s proposals are as effective as language is not as effective as Federal to satisfy the mandates of the Federal Federal law requires. For example, the requirements, and the State must be statute and regulations. In other cases, commenter added, there is a clear required to submit provisions that are as WVCA asserted, the demanded changes difference between ‘‘adjacent areas’’ and stringent as Federal law. have been superficial, lacking any ‘‘adjacent areas with an angle of draw of In response, and as discussed above at substantive basis and generally at least 30 degrees.’’ The former protects Finding 21, WVDEP asserted that when unnecessary. WVCA stated that for a larger area, the commenter stated. the State law and rules are read in WVDEP and the regulated mining Generally, the commenter asserted, the concert, there is no confusion that the community, OSM’s practice of specific language of the Federal State provision is no less effective than continually generating required requirements is more protective of SMCRA section 515(c)(3). In addition, amendments has placed the State’s citizens in the area and the State should the WVDEP submitted its policy approved mining program in turmoil. not be permitted to compromise concerning how the provision will be The most offending manifestation of citizens’ rights by letting coal interpreted by WVDEP. We found that OSM’s actions, WVCA asserted, is the companies harm their homes and policy renders the West Virginia legal action filed by the WVHC and properties without compensating them. program no less effective than the term currently pending in Federal District In response, and as stated above in ‘‘recreational facilities use’’ at SMCRA Court (WVHC vs. Norton, Civil Action Finding 15, the State has complied with section 515(c)(3) and we approved that 2:00–CV–1062). WVDEP proposed this required amendment by revising its policy as part of the West Virginia program amendments have been permit application to require that the program. allowed to accrue for years, WVCA type and location of the applicable 14. 30 CFR 948.16(kkkk). The stated, giving rise to the Conservancy’s structures, lands and water supplies be commenter stated that the current State legal action which seeks to substitute identified. In addition, in its May 2, language is not as effective as Federal judicial mandate for agency discretion, 2001, submittal, the State amended CSR requirements, and the State must be a result never intended by OSM’s 38–2–3.12.a.1. concerning subsidence required to submit provisions that are as guiding statute, SMCRA. WVCA stated control plans by adding the requirement stringent as Federal law. that, in general, and with two to include a narrative. Therefore, the In response, and as we discuss above exceptions, it supports the proposed required amendment at 30 CFR at Finding 23, the State has satisfied the amendments and responses offered by 948.16(zzz) has been satisfied. required amendment at 30 CFR WVDEP to satisfy several outstanding 11. 30 CFR 948.16(aaaa). The 948.16(kkkk) by amending the W. Va. required program amendments. WVCA commenter stated that the State Code at 22–3–13a(g). urged OSM to approve the amendments provisions would not protect citizens’ 15. 30 CFR 948.16(llll). The as offered by WVDEP or accept the drinking water supplies because they commenter stated that the current State responses offered by the State agency in are not as effective as Federal law. The language is not as effective as Federal instances where it believes no program commenter asserted that the WVDEP requirements, and the State must be amendment is necessary. could not rely on lax and informal required to submit provisions that are as In response, we disagree that the guidance documents as substitutes for stringent as Federal law. required amendments that have been the approved State program. In response, and as we discuss above placed on the West Virginia program are In response, as we discussed above in at Finding 24, the State has satisfied the superficial, lack substance and are Finding 16, the State has addressed this required amendment at 30 CFR generally unnecessary. Changes in both required amendment by adding 948.16(llll) by amending the W. Va. State and Federal surface mining laws language to CSR 38–2–3.12.a.1. that Code at 22–3–13a(j). and regulations over the years have makes it clear that the WVDEP can 16. 30 CFR 948.16(mmmm). The resulted in the imposition of the specify a area greater than that commenter stated that the current State required amendments that are being encompassed by a 30-degree angle of language is not as effective as Federal considered today. Resolution of these draw. In addition, the State has requirements, and the State must be issues will ensure that the State’s amended CSR 38–2–3.12.a.2. to require required to submit provisions that are as program is consistent with Federal law a survey of the quality and quantity of stringent as Federal law. and regulations. Compliance with these water supplies that could be In response, and as we discuss above minimum Federal standards ensures contaminated, diminished or at Finding 25, the State has satisfied the that the regulation of the mining interrupted by subsidence ‘‘within the required amendment at 30 CFR community is fair and consistent from permit area and adjacent areas.’’ 948.16(mmmm) by amending the W. Va. state to state and affords West Therefore, the required amendment at Code at 22–3–30a(a). Virginians the same level of 30 CFR 948.16(aaaa) has been satisfied. B. We also published a notice in the environmental protection of other 12. 30 CFR 948.16(bbbb). The Federal Register on March 25, 2002 (67 States. It is unfortunate that some of commenter asserted that the State’s FR 13577), and requested public these required amendments have gone provisions are less effective than the comments on the State’s February 26, unresolved for many years. We are Federal program, and the State may not 2002, and March 8, 2002, amendments hopeful that in the future issues of this substitute guidance documents for the (Administrative Record Number WV– nature will be resolved in a more timely approved State program. 1285). By letter dated April 9, 2002 manner. In response, and as discussed above (Administrative Record Number WV– 18(a). WVCA has four main concerns in Finding 17, the State amended CSR 1295), the West Virginia Coal regarding WVDEP’s proposed 38–2–3.12.a.2.B. to clarify that the Association (WVCA) responded with amendment to CSR 38–2–5.4.b.8 offered applicant must pay for the surveys and the following comments. to satisfy required program amendment any technical assessments or 17. According to the WVCA, for years, (oo). First, WVCA would like a engineering evaluations. Therefore, the OSM has saddled West Virginia’s clarification that 30 CFR 948.16(oo)
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deals with a standard to ensure that structures that are at ground level, section....’’ 30 CFR spillways associated with sediment because existing State requirements 816.49(a)(9)(emphasis added by WVCA). control structures can ‘‘safely pass,’’ already provide that other sediment 30 CFR 816.46(a)(9)(ii)(C) prescribes the meaning, ‘‘withstand,’’ 25-year 24-hour control structures must have spillways design event that ‘‘spillways’’ must be precipitation events. WVCA stated that designed and constructed to safely pass capable of withstanding, WVCA stated, 30 CFR 948.16(oo) and the Federal and a 25 year, 24-hour event. Furthermore, and provides that: ‘‘[f]or an State counterparts, 30 CFR the applicability requirements at CSR impoundment not included in 816.49(sic)(a)(9)(ii)(C) and W.Va. CSR 38–2–1.2 provide for the application of paragraph (a)(9)(ii)(A) and (B) of this 38–2–5.4.b.8, do not contain storage these requirements to all existing and section, a 25-year 6-hour or greater capacity requirements for sediment new surface mining operations. We event as specified by the regulatory control structures. anticipate that upon mid-term review, authority.’’ 30 CFR 816.46(a)(9)(ii)(C). In response, we agree that the permit revision or permit renewal, the The WVCA concluded that the required amendment at 30 948.16(oo) State will require spillways for requirement to ‘‘safely pass’’ such a relates to the design and construction of excavated sediment control structures storm event is distinct from the spillways for sediment control that do not safely pass a 25-year, 24- requirement to ‘‘contain or treat’’ such structures and does not concern the hour event to be redesigned and a storm event. storage capacity of sedimentation constructed to comply with these In response, we agree that the ponds. The State’s storage capacity requirements. required amendment at 30 CFR requirements for sedimentation ponds 18(d). Finally, WVCA stated that, as 948.16(oo) pertains only to the design are contained in CSR 38–2–5.4.b.4. On explained in subsequent paragraphs, it and construction of spillways for May 23, 1990, these requirements were would be remiss not to identify the excavated sediment control structures. determined to be no less effective than inconsistency of OSM regarding this As discussed above in our response to the Federal requirements at 30 CFR 816/ required program amendment. Comment 18(a), we clarified that this 817.46(c)(1)(iii)(C) (55 FR 21304, In response, as discussed above in required amendment does not relate to 21319). Finding 4, we do not believe that we the storage capacity of sediment control 18(b). Second, WVCA maintains that have been inconsistent in our treatment structures. It should be pointed out that CSR 38–2–5.4.b.8 not only corresponds of this required amendment. the Federal requirements have been to the Federal requirement at 30 CFR 19. According to the WVCA, in the revised and reorganized since this 816.49(a)(9)(ii)(C), but that CSR 38–2– past and in news accounts following required amendment was imposed on 5.4.b.8’s 25-year 24-hour precipitation flooding, which occurred in July 2001, the State’s program. This may be partly event standard is more stringent than 30 standards regarding the storage capacity to blame for the confusion. As discussed CFR 816.49(a)(9)(ii)(C)’s 25-year 6-hour of sediment control structures have been above in Finding 4, the State’s proposed precipitation event standard. confused with requirements governing 25-year, 24-hour spillway design and In response, as discussed in the May the integrity of spillways associated construction standard is no less 23, 1990, Federal Register, we found with sediment control structures. effective than the Federal requirements that, under most conditions in West Therefore, WVCA asserted, OSM should at 30 CFR 816/817.46(c)(2) and 30 CFR Virginia, the peak runoff from a 24-hour clarify the distinction between 816/817.49(a)(9)(ii)(C), not 30 CFR precipitation event would exceed that requirements to ‘‘safely pass’’ a given 816.46(a)(9)(ii)(C), as mentioned above. from a 6-hour event or that the precipitation event and requirements to 20. According to the WVCA, the difference was insignificant in terms of ‘‘contain or treat’’ a given precipitation provisions of section 505(b) of SMCRA design considerations. Therefore, we event (‘‘storage capacity’’ requirements). expressly provide that State law that found that the State’s use of the 24-hour WVCA stated that 30 CFR 948.16(oo), imposes requirements not found in storm duration for spillway design and titled ‘‘Spillway design,’’ requires CSR SMCRA or ones more stringent than construction was no less effective than 38–2–5.4.b.8 to be amended to require required by the Federal program are not the Federal 6-hour standard (55 FR that ‘‘excavated sediment control legally defective by reason of that 21304, 21319). structures which are at ground level and inconsistency. WVCA asserted that the 18(c). Third, WVCA stated that it have an open exit channel constructed West Virginia requirement to withstand believes that CSR 38–2–5.4.b.8 should of non-erodible material be designed ‘‘to a 25-year 24-hour storm is more be applied prospectively only, as it pass’’ the peak discharge of a 25-year stringent than the federal standard in 30 exceeds the requirements of the 24-hour precipitation event.’’ 30 CFR CFR 816.46(a)(9)(ii)(C) requiring safe corresponding Federal law and there is 948.16(oo)(emphasis added by WVCA). passage of a 25-year 6-hour event, no reason to believe that spillways According to the WVCA, while CSR 38– because of the longer duration storm designed to pass 10-year 24-hour storm 2–5.4.b.4 and the corresponding Federal event utilized under the West Virginia events at excavated ponds need to be regulation at 30 CFR 816.46(c)(1)(iii)(C) standard. In this regard, WVCA rebuilt. focus on the requirements for concluded, West Virginia has not In response, we disagree that these ‘‘containing and treating’’ precipitation complied with its own statutory requirements should only be applied events, the requirement in 30 CFR prohibition on adopting regulations that prospectively and that the proposed 948.16(oo) focuses on the storm event are more stringent than corresponding State standard exceeds the Federal which a spillway must be designed to Federal regulations without first making requirements. As discussed above in ‘‘safely pass.’’ 30 CFR 816.49(a)(9) is the specific findings (See W.Va. Code Finding 4, a joint review of this issue Federal regulation that corresponds to §§ 22–1–3(c) & -3a). disclosed that the spillways for many of CSR 38–2–5.4.b.8. 30 CFR 816.49(a)(9) In response, a 25-year, 24-hour event these sediment control structures are states, ‘‘[a]n impoundment shall include is longer in duration than a 25-year, 6- currently larger than the required 25- either a combination of principal and hour event. Typically, a 24-hour storm year, 24-hour standard due to the size of emergency spillways or a single yields more total water volume, but a the equipment used to construct them. spillway * * * designed and lower peak flow (depth of water in a In addition, retroactive application of constructed to ‘‘safely pass’’ the channel) than a 6-hour storm. However, the 25-year, 24-hour standard will only applicable design precipitation event as discussed above in response to pertain to excavated sediment control specified in paragraph (a)(9)(ii) of this Comment 18(b), we found that, in West
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Virginia, this does not hold true. Rather, of spillways to be less effective than the amendment to the approved State on May 23, 1990 (55 FR 21304, 21318), Federal 25-year, 6-hour standard in program, DK Excavating, 549 S.E.2d we found the State’s proposed 25-year, October 1991. We has never approved 280, (Administrative Record Number 24-hour standard to be no less effective the State’s 10-year, 24-hour spillway WV–1292). than the Federal 25-year, 6-hour design standard for excavated sediment 22. According to the WVCA, OSM standard. That is, we found that in West control structures. Neither is the previously pledged to remove the Virginia, under most conditions, the proposed 25-year, 24-hour State required program amendment at 30 CFR peak runoff from a 24-hour storm would standard more stringent than the 948.16(oo). WVCA stated that in a 1994 exceed that from a 6-hour storm or that Federal 25-year, 6-hour spillway communication from OSM to WVDEP, the difference was insignificant in terms standard. The proposed revision will Charleston Field Office Director James of design considerations. While we simply make the State’s spillway design Blankenship pledged to resolve 30 CFR agree that the State standard is no less and construction requirements for 948.16 (oo) by approving CSR 38–2– effective than the Federal standard, we excavated sediment control structures 5.4.b.8 ‘‘as an exemption similar to the do not consider it to be more stringent no less effective than the Federal one approved in the Illinois state than the Federal requirements. requirements. Retroactive application of program’’ (W.Va Administrative Record Furthermore, our determination was these requirements (ie. application to 934). Additionally, WVCA stated, in two made four years prior to the State existing ground level, excavated official exchanges subsequent to adopting its more stringent statutory sediment control structures on sites that Blankenship’s 1994, letter WVDEP again provisions in 1994. Therefore, even if have not received final bond release) is argues that CSR 38–2–5.4.b.8 is as the 24-hour standard is considered to be required by the State’s approved stringent as the federal program and that more stringent than the Federal program. As provided by CSR 38–2– OSM’s original ‘‘promise’’ regarding the requirements, the State has not violated 1.2.a., these rules apply to all existing outstanding program amendment at 30 its own statutory prohibition on surface mining operations in the State. CFR 948.16(oo) should be honored. In adopting regulations that are more Only CSR 38–2–3.8.c. provides an November 2000, WVDEP responded to stringent than corresponding Federal exemption for existing structures. CSR required amendment (oo) by citing the regulations. 38–2–2.48 defines existing structure to language from the 1994 letter (WV 21. According to the WVCA, because mean a structure or facility used with or Administrative Record 1189). Despite the proposed amendment to CSR 38–2– to facilitate surface coal mining and WVDEP’s response to OSM, in January 5.4.b.8 exceeds the requirements of the reclamation operations for which 2001 the required amendment to CSR Federal program, it should be applied construction began prior to January 18, 38–2–5.4.b.8 is again restated (66 Fed. on a prospective basis only. Further, 1981, the effective date of the State’s Reg. 335) WVCA stated. In response, WVCA stated, prior scrutiny by OSM of approved program. Even then, such WVDEP again pointed to the 1994 the West Virginia program and structures are subject to revision or pledge by OSM to approve the existing experience have validated that use of a reconstruction when it is necessary to regulation as a program exemption. 10-year 24-hour storm event standard is comply with a performance standard. WVCA stated that to its knowledge, safe. WVCA stated that in August 1994, OSM has never clarified why the intent OSM Charleston Field Office Director Furthermore, the comments made of the 1994 letter regarding amendment James Blankenship, in a letter to WV above by WVCA regarding the safety of (oo) was never implemented. DEP Director David Callaghan regarding these types of structures are incorrectly Unfortunately, WVCA stated, the the West Virginia regulatory program attributed to OSM. The language that disparity of OSM regarding this acknowledged the sufficiency of the 10- WVCA quoted is the State’s response to particular amendment is illustrative of year 24-hour storm event standard when our comment that the proposed State how the Federal agency communicates applied to excavated sediment control standard was still less effective than the with WVDEP regarding the consistency structures: ‘‘These types of structures by Federal requirements. During a meeting of the State program with its Federal their very nature are not subject to with the State in 1994, it was alleged counterpart. Far too often, WVCA catastrophic failure or excessive erosion. that OSM had approved the 10-year, 24- asserted, OSM demands changes of The designed storm criteria are hour standard in other States. In WVDEP for insignificant or nonexistent established to address these potentials response to this allegation, we agreed to reasons. WVCA stated that, as and are of no significance for these determine if a similar exemption existed illustrated by the Federal agency’s structures’ (see W.Va. Administrative in the Illinois program. As addressed conduct regarding 30 CFR 948.16(oo), Record 934). WVCA stated that historic above in Finding 4, there is no such OSM often fails to follow its own events have further confirmed the standard in the Illinois program. We directives regarding State programs. The adequacy of the previous standard understand that the West Virginia result of this confusion between the utilized by WVDEP. The WVCA Surface Mine Board recently dismissed Federal and State programs, WVCA concluded that following a record storm a case based on the State’s 10-year, 24- asserted, is demonstrated by the current event in July 2001, the West Virginia hour spillway standard. We believe that, litigation pending against OSM in Surface Mine Board determined that at the time, the Surface Mine Board was Federal District Court (WVHC v. Norton) structures constructed according to the not aware that OSM had earlier found and the ongoing section 733 actions 10-year 24-hour storm event standard the State’s standard to be less effective undertaken by OSM against WVDEP. were subjected to 100-year 24-hour than the Federal requirements. WVCA urged that, in the spirit of ending storm event but did not breach or fail, Furthermore, such standard cannot be this confusion, OSM approve the just as OSM originally opined in 1994. considered to be part of the approved amendment to CSR 38–2–5.4.b.8 as In response, we disagree that the State program. As discussed above, the offered by WVDEP. proposed revision to CSR 38–2–5.4.b.8 West Virginia Supreme Court of In response, as discussed above in exceeds the Federal requirements, and Appeals has held that, when an regard to Comment 21, we agreed to should only be applied prospectively. amendment to the State program is consider approving the State’s proposal As discussed above in Finding 4, we found by OSM to be inconsistent with if such an exemption had been found the State’s 10-year, 24-hour the Federal requirements, the proposed previously approved in the Illinois standard for the design and construction amendment cannot be deemed an program. As discussed above in Finding
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4, no such exemption exists in the resources. Furthermore, given the revisions to permit applications. In Illinois program. If we had determined State’s commitment not to implement addition, notification of any changes in that this provision was as effective as the disapproved regulatory provisions at State laws or regulations that make up the Federal requirements, it would have CSR 38–2–23, as demonstrated by its an approved State regulatory program removed the required amendment. actions in DK Excavating, and because are provided to MSHA for review and Instead, the required amendment has of the principles established in comment prior to our approval. remained on the State program since Canestraro, Schultz, and DK Excavating, 2. The United States Department of 1991, because the State’s spillway we are removing the required Agriculture, Natural Resources standard for excavated sediment control amendment at 30 CFR 948.16(oooo) Conservation Service (NRCS) responded structures was determined to be less because the concerns contained therein on February 9, 2001 (Administrative effective than the Federal standard. This have been satisfied and it is no longer Record Number WV–1203), and information was conveyed to the State needed. provided the following comments. At both informally and formally. In C. We asked for public comments on required amendment 30 CFR addition, we regularly provides State the amendment package submitted on 948.16(dd), NRCS suggested language to officials and the public an update on the May 2, 2001, concerning House Bill be used in place of the WVDEP’s status of the State’s outstanding 2663 in the Federal Register on May 24, response to the required amendment required amendments and 30 CFR Part 2001 (Administrative Record Number codified at 30 CFR 948.16(dd). NRCS 732 issues in the West Virginia Annual WV–1213). We did not receive any suggested the following language: ‘‘The Report. We stand by our earlier specific public comments on the State’s productivity for grazing land, hayland, decision. However, as discussed above responses to the required amendments and cropland can be based upon the in Finding 4, because we now find the addressed in this document. However, productivity determinations for similar State’s proposed spillway revision of some of the public comments discussed soil classifications, or similar map units, February 26, 2002 (Attachment 2), to be above were addressed by amendments as published in the productivity tables no less effective than the Federal included in this submission. in NRCS soil surveys, or in the NRCS requirements, we are removing the D. We asked for public comments on Grassland Suitability Groups.’’ required amendment at 30 CFR the amendment package submitted on In response, we note that after NRCS 948.16(oo). November 28, 2001, concerning blasting commented, the State amended its 23. WVCA stated that it has the in the Federal Register on January 31, response. As discussed in Finding 2, following observation regarding the 2002 (Administrative Record Number WVDEP proposed a policy to satisfy the required amendment specified at 30 WV–1267), but we did not receive any required amendment at 30 CFR CFR 948.16(oooo). WVCA stated that by comments from the public. 948.16(dd) regarding productivity and ground cover. In effect, the policy will demanding that WVDEP remove CSR Federal Agency Comments 38–2–23, OSM appears committed to do what the NRCS has suggested. In wasting coal resources that could be Under 30 CFR 732.17(h)(11)(i) and addition, operators will be expected to extracted through incidental, non- section 503(b) of SMCRA, we requested work with the NRCS, West Virginia mining related construction or comments on the amendments from Agricultural Statistics Service/USDA development. WVCA stated that such a various Federal agencies with an actual and WVDEP in developing productivity desire by OSM is counter to the purpose or potential interest in the West Virginia standards for proposed mining and spirit of SMCRA, and simply does program by letters dated January 26, and operations that have hayland, not agree with conventional common May 30, 2001, and February 1, and pastureland, or cropland as the sense. WVCA urged OSM, as WVDEP March 11, 2002 (Administrative Record postmining land use. has for several years, to remove the Numbers WV–1199, WV–1215, WV– 3. NRCS also commented on the required program amendment. 1268, and WV–1284, respectively). required amendment codified at 30 CFR In response, as discussed above in 1. By letter dated February 14, 2001 948.16(ee). NRCS stated that when Finding 28, we disapproved the State’s (Administrative Record Number 1204), evaluating important farmland, NRCS incidental mining requirements at CSR the United States Department of Labor, uses form AD–1006 to determine a 38–2–23 on May 5, 2000 (65 FR 26130, Mine Safety and Health Administration Relative Value of Farmland to be 26133). In addition, on February 9, 1999 (MSHA) responded to our request for Converted. This form gives weight to (64 FR 6201, 6204), we found similar comments. MSHA requested that we Prime and Unique Farmland, and also statutory provisions at W.Va. Code 22– contact MSHA in the event that any gives weight to statewide Important 3–28(a) through (c) to be less stringent long-standing regulation or amendment Farmland and Locally Important than sections 528 and 701(28) of thereto should change or alter the areas Farmland. This is the national system of SMCRA, and therefore unapprovable. In of a surface or underground coal mine Land Evaluation and Site Assessment, our disapproval, we noted that we are or a preparation facility, including or LESA. Many map units of Statewide bound by the constraints of SMCRA refuse piles, impoundments, sealed importance exceed 10 percent slope, which does not provide a blanket mines, or highwalls at surface mines. and impact our evaluation. Lists of exemption from the definition of surface MSHA further stated that if such Prime Farmland, Unique Farmland, mining operations for privately financed regulations or amendments do cause Statewide Important Farmland, and construction as proposed by the State. A such changes or alterations, MSHA will Locally Important Farmland are similar two-acre exemption had existed assign a technical inspector to discuss available for each county. under section 528(2) of SMCRA, but was the mine operator’s approved plans In response, we note that after the repealed by Public Law 100–34 on May concerning the affected areas for the NRCS commented, WVDEP revised its 7, 1987. While incidental mining amendment at issue. response to the required amendment at activities are not exempt from the In response, changes in State laws and 30 CFR 948.16(ee). As discussed in requirements of SMCRA, we have regulations are usually incorporated Finding 3, WVDEP submitted its prime encouraged WVDEP to work with into existing permits at the time of farmland requirements and procedures applicants in providing more timely permit renewal, permit revision, or mid- to the NRCS for review. The NRCS review and approval of such term review. MSHA is provided copies commented on the nature and extent of applications to avoid the wasting of coal of any request for renewal or significant WVDEP’s reconnaissance inspections
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and concurred with the State’s negative postmining land use cannot be mountaintop removal mining operations determination criteria for prime approved where the use could be in West Virginia. Few, if any, farmland. The documents described achieved without waiving the AOC mountaintop removal mining operations above are taken into consideration when requirement, except where it is in the State have cropland as an evaluating areas for prime farmland. demonstrated that a significant public or approvable postmining land use. In 4. The U. S. National Park Service economic benefit will be realized addition, the change from one land use (NPS) responded and provided two therefrom; and, (2) where an exception category to another category would have suggestions (Administrative Record or variance from the approximate to satisfy the alternative postmining Number WV–1289). Concerning the original requirements is sought, the land use requirements of CSR 38–2–7.3. State’s response to the required postmining land use must always offer 6. By letter dated March 29, 2002 amendment at 30 CFR 948.16(iiii), NPS a net benefit to the public or the (Administrative Record Number WV– stated that recreational uses such as off- economy. As discussed above in 1291), the U.S. Army Corps of Engineers road vehicle use requires only a Finding 21, we find that the policy (COE) responded and suggested the minimal amount of reclamation, and statement provided by WVDEP renders inclusion of a statement indicating that operators will naturally gravitate the term ‘‘recreational uses’’ at W. Va. separate authorization from the COE be towards reclaiming areas to this level if Code 22–3–13(c)(3) no less stringent required for all work involving any allowed to. The State’s reclamation than the term ‘‘recreational facilities discharge of dredged or fill material into standards in effect would be lowered use’’ at section 515(c)(3) of SMCRA and waters of the U.S. COE made this through what appears to be an can be approved. recommendation it said in order to unintended interpretation of what 5. NPS also stated that language avoid any inadvertent implication that constitutes ‘‘recreational facilities use’’ identified in the amendments as 30 CFR the requirements of Section 404 of the under SMCRA section 515(c)(3). 948.16(dd) allows for the continuation Clean Water Act are somehow In response, SMCRA at section of the practice of returning previously superseded by the amendments. 515(c)(3) provides the minimum mined lands to grazing land, pasture In response, as provided by section standards for approval of mountaintop land or cropland. NPS stated that while 702(a)(3) of SMCRA, we acknowledge removal mining operations. Section grazing is an acceptable reclamation that nothing in the SMCRA 515(c)(3)(A) provides that after goal under some circumstances, it requirements may be construed as consultation with the appropriate land should be a limited option, especially in superseding, amending, modifying or use planning agencies, if any, the the highly productive hardwood forest repealing the Federal Water Pollution proposed postmining land use must be region that surrounds the New River Control Act [amended as The Clean deemed to constitute an equal or better Gorge National River and Gauley River Water Act (CWA)] or the regulations economic or public use of the affected National Recreation Area. The promulgated thereunder. State programs land, as compared with premining use. circumstances under which grazing do not have to contain a statement That is, while the applicant may land, pasture land or cropland would be regarding the discharge of dredge or fill propose a certain postmining land use an acceptable reclamation goal, NPS material in waters of the United States. for mountaintop removal mining stated, need to be specified and meet the However, many States make it a operations, it is the decision of the higher and better use test. condition of permit approval requiring regulatory authority whether to approve In response, we note that SMCRA and that the surface mining reclamation a proposed postmining land use. The the Federal regulations currently allow operation cannot commence without the decision, in accordance with section such considerations. Under section issuance of a CWA Section 404 Permit 515(c)(3)(A), must focus on the value of 515(c)(3) of SMCRA, industrial, by the COE. the proposed use as compared to the commercial, agricultural, residential, or 7. By letter dated March 7, 2002 premining use. In addition, SMCRA public facility (including recreational (Administrative Record Number WV– section 515(c)(3)(B) provides that the facilities) uses may be approved as 1290), NRCS stated that its definitions applicant must present specific plans postmining land uses for mountaintop are not consistent with several parts of for the proposed use and appropriate removal mining operations. Certain the State’s rules at CSR 38–2–10 assurances that such use: will be managed grassland uses, such as grazing regarding negative determination compatible with adjacent land uses; land, pasture land, or hayland, are criteria. Because cropping history is not obtainable according to data regarding included within the Federal considered in the NRCS definition of expected need and market; assured of ‘‘agricultural’’ land use category under prime farmland, they concluded that investment in necessary public section 515(c)(3). The State’s they could not agree with any historic facilities; supported by commitments mountaintop-removal provisions at use of the land as set forth in the State’s from public agencies where appropriate; W.Va. Code 22–3–13(c)(3) contain rules at CSR 38–2–10.2.a though practicable with respect to private similar requirements. However, as 10.2.a.1.C. financial capability for completion of discussed in the August 16, 2000, In response, as discussed above in the proposed use; and planned pursuant Federal Register, we approved a new Finding 2, section 701(20) of SMCRA to a schedule attached to the provision at CSR 38–2–7.3.c (65 FR defines prime farmland to include lands reclamation plan so as to integrate the 50409, 50414). Subsection 7.3.c. ‘‘which have been used for intensive mining operation and reclamation with provides that a change in postmining agricultural purposes * * *.’’ In the postmining land use. Also, Section land uses to grassland uses, such as addition, 30 CFR 701.5 defines prime 515(c)(3)(C) also provides that the rangeland and/or hayland or pasture, is farmland to mean those lands which are proposed use must be consistent with prohibited on mountaintop removal defined by the Secretary of Agriculture existing State and local land use plans mining operations that receive an in 7 CFR Part 675 and which have been and programs. The State counterparts to approximate original contour variance historically used for cropland. Because these requirements are at W. Va. Code described in W.Va. Code 22–3–13(c). the State’s prime farmland requirements 22–3–13(c)(3). Therefore, as recommended by the NPS, include an historical use criterion that It is our belief that compliance with the grassland uses described above, is no less effective than the Federal the SMCRA provisions discussed above except for cropland, are no longer requirements at 30 CFR 701.5 and leads to the following conclusions: (1) A approvable postmining land uses for because the NRCS concurs with the
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State’s other negative determination Record Numbers WV–1198 and WV– materials should not be placed in the criteria, we found WVDEP’s proposal to 1283, respectively). On July 3, 2001, and backfill. be no less effective than the Federal April 10, 2002 (Administrative Record 3. Required amendment codified at 30 requirements at 30 CFR 785.17. Numbers WV–1225 and WV–1294), EPA CFR 948.16(bbbb) concerning premining Therefore, we are removing the sent us its written concurrence with surveys that require technical applicable portion of the required comments. EPA stated that there are no assessments or engineering evaluations amendment at 30 CFR 948.16(ee). apparent inconsistencies with the Clean of water supplies prior to underground We asked for comments from Federal Water Act (CWA), the National mining. EPA recommended that these agencies by letter dated May 30, 2001, Pollutant Discharge Elimination System surveys also include the quantity and concerning the amendment package (NPDES) regulations, or other statutes chemical and biological quality of submitted to us on May 2, 2001, and regulations under the authority of intermittent and perennial streams. concerning House Bill 2663 EPA. EPA said that it is providing its Subsidence has caused impairment of (Administrative Record Number WV– concurrence with the understanding aquatic habitat from water loss through 1215). that implementation of the amendments streambed fissures and from ponding in 8. On June 25, 2001, the U.S. Fish and must comply with the CWA, NPDES subsided stream stretches, the EPA also Wildlife Service responded to our regulations, and other statutes and stated. request for comments, but it did not regulations under its authority. In response, we note that the Federal comment on any of the State’s proposed In addition, EPA provided the regulation at 30 CFR 784.20(a)(3), upon revisions to the outstanding required following comments on the proposed which the State rule is based, applies amendments (Administrative Record amendments. only to technical assessments or Number WV–1224) that we are 1. Required amendment codified at 30 engineering evaluations of certain addressing in this document. Therefore, CFR 948.16(oo) concerning the required protected water supplies, and not to no response by us is necessary. design standard for excavated sediment land, or to streams in general. We also asked for comments from control structures. EPA stated that it 4. On April 10, 2002, in response to Federal agencies by letter dated does not have any comments on the the State’s proposed revision to satisfy February 1, 2002, concerning the design of sediment control structures to 30 CFR 948.16(pppp) regarding bond amendment package submitted to us on pass certain size storm flows, but release and premining water quality, November 28, 2001, concerning blasting wished to point out that settleable solids EPA noted that on January 23, 2002, it (Administrative Record Number WV– effluent limits are required by 40 CFR promulgated effluent guideline 1268). Part 434 for discharges to waters of the regulations for remining operations. The 9. On March 1, 2002 (Administrative United States resulting from 10-year, 24- regulations are consistent with section Record Number WV–1281), MSHA hour or less storms. 301(p) of the CWA (Rahall Amendment) responded and stated that the employee In response, we acknowledge the and provide an incentive for remining and adjacent landowner safety applicability of the regulations at 40 by requiring less stringent effluent provisions are consistent with MSHA CFR Part 434 to the West Virginia limits than are required for conventional blasting standards. MSHA also stated it program at CSR 38–2–14.5.b. mining operations. According to EPA, found no issues or impact upon coal 2. Required amendment codified at 30 the remining effluent limits in 40 CFR miner’s health and safety. CFR 948.16(vvv)(4) concerning the Part 434 Subpart G apply to preexisting 10. On February 26, 2002 placement of coal processing waste in discharges until bond release and, at a (Administrative Record Number WV– the backfill. EPA stated that it minimum, may not exceed preexisting 1279), COE responded and stated that emphasizes the importance that all baseline levels. Applications for NPDES their review of the proposed assurances be made during placement of permits for remining operations must amendment found it to be generally any acidic material into backfills, include pollution abatement plans that satisfactory. The COE did not have any whether refuse or overburden, to identify the best management practices other comments related to the required minimize acid formation and prevent to be used. Applications must also amendments codified at 30 CFR acid seepage. If conditions exist where include monitoring data on preexisting 948.16(kkkk), (llll), or (mmmm) that there are questions about the baseline loadings, unless such were addressed in the State’s blasting effectiveness of measures for preventing monitoring is considered infeasible due amendment package. acid seepage, EPA stated, then acidic to inaccessible discharges or other 11. On February 5, 2002 materials should not be placed in the reasons. EPA noted that it is expected (Administrative Record Number WV– backfill. that WVDEP will be providing 1270), the NPS responded to the State’s In response, and as discussed above regulations consistent with 40 CFR Part blasting amendment and stated that it in Finding 14, acid-or toxic-producing 434 Subpart G in the near future. had no specific comments. materials will be rendered non-acid In response, as discussed above in and/or non-toxic prior to being placed Finding 28, we acknowledge that EPA Environmental Protection Agency (EPA) in a backfill. WVDEP stated that CSR has recently issued effluent limitation Comments/Concurrence 38–2–14.15.m.2. provides that coal guidelines for remining operations, and Under 30 CFR 732.17(h)(11)(i) and processing waste will not be placed in it is anticipated that the State’s remining (ii), we are required to get comments the backfill unless it is non-acid and/or requirements, including CSR 38–2–24.4 and the written concurrence of EPA for non-toxic material or rendered non-acid if necessary, will have to be revised in those provisions of the program and/or non-toxic material. In addition, the near future to comply with the new amendment that relate to air or water CSR 38–2–1.6.b. prohibits acid-forming requirements. quality standards issued under the or toxic-forming material from being 5. We asked EPA for comments by authority of the Clean Water Act (33 buried or stored in proximity to a letter dated February 1, 2001, on the U.S.C. 1251 et seq.) or the Clean Air Act drainage course or groundwater system. amendment package submitted on (42 U.S.C. 7401 et seq.). We agree with EPA that if conditions November 28, 2001, concerning blasting On January 26, 2001, and March 11, exist where there are questions about (Administrative Record Number WV– 2002, we asked for concurrence on the the effectiveness of measures for 1268). On February 28, 2002, EPA amendments from EPA (Administrative preventing acid seepage, then acidic responded and stated that it has
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determined that there are no apparent This may be due to the fact that the program demonstrate that the State has inconsistencies with the Clean Water proposed outcrop barrier may be the capability of carrying out the Act or other statutes and regulations adjacent to or in the vicinity of a high provisions of the Act and meeting its under EPA’s jurisdiction quality stream. However, given that the purposes. Making this regulation (Administrative Record Number WV– State’s existing statutory provision is effective immediately will expedite that 1282). identical to the proposed regulatory process. SMCRA requires consistency of 6. We also asked EPA for comment provision at CSR 38–2–14.8.a.6. and State and Federal standards. and concurrence by letter dated May 29, because the State’s constructed outcrop 2001, on the amendment package barrier requirements are in accordance VI. Procedural Determinations submitted on May 2, 2001, concerning with the Federal requirements for Executive Order 12630—Takings State House Bill 2663 (Administrative natural barriers at SMCRA section This rule does not have takings Record Number WV–1214). By letter 515(b)(25), we do not agree that the term implications. This determination is dated November 23, 2001, EPA ‘‘paramount’’ needs to be defined or provided the following comments further clarified as recommended by based on the analysis performed for the (Administrative Record Number WV– EPA. counterpart Federal regulations. 1252). Concerning the State’s response 7. Concerning the required Executive Order 12866—Regulatory to 30 CFR 948.16(xx), EPA stated that amendments at 30 CFR 948.16(ffff), Planning and Review this provision includes a requirement (gggg), and (hhhh), EPA noted that these that, ‘‘where water quality is provisions relate to the amount of time This rule is exempt from review by paramount,’’ outcrop barriers be allowed to remedy subsidence damage the Office of Management and Budget constructed with impervious material to lands, structures, or water supplies. (OMB) under Executive Order 12866. and have controlled discharge points. EPA stated that it is unclear in this Executive Order 12988—Civil Justice EPA recommended that a definition or section or other sections regarding Reform some clarification of the term subsidence control if the term ‘‘lands’’ ‘‘paramount’’ be added as it relates to includes streams and wetlands which The Department of the Interior has water quality. may be adversely affected by water loss conducted the reviews required by In response, as discussed above in through subsidence cracks and ponding section 3 of Executive Order 12988 and Finding 6, the State revised its rules at of subsided stream portions. To provide has determined that, to the extent CSR 38–2–14.8.6.a. to provide design clarification, EPA recommended that allowable by law, this rule meets the requirements for constructed outcrop the words ‘‘streams and wetlands’’ be applicable standards of subsections (a) barriers. In addition, on February 26, included along with lands, structures, and (b) of that section. However, these 2002, WVDEP proposed guidelines that and water supplies in this section and standards are not applicable to the further clarify what standard other appropriate sections addressing actual language of State regulatory engineering practices will be followed subsidence control. programs and program amendments when allowing for the removal of a In response, we note that the Federal because each such program is drafted natural barrier and constructing an definition of ‘‘material damage’’ at 30 and promulgated by a specific State, not outcrop barrier. The term ‘‘paramount’’ CFR 701.5 covers damage to the surface by OSM. Under sections 503 and 505 of that EPA recommends be defined is also and to surface features, such as SMCRA (30 U.S.C. 1253 and 1255) and contained in W.Va. Code Section 22–3– wetlands, streams, and bodies of water, the Federal regulations at 30 CFR 13(b)(25). Like the proposed rule, the and to structures or facilities. 60 FR 730.11, 732.15, and 732.17(h)(10), statute provides that where water 16724, col. 3, March 31, 1995. The decisions on proposed State regulatory quality is paramount, the constructed State’s definition of material damage programs and program amendments barrier must be composed of impervious contained in CSR 38–2–16.2.c. is submitted by the States must be based material with controlled discharge substantively identical to the Federal solely on a determination of whether the points. The State statutory provision definition in these pertinent respects. submittal is consistent with SMCRA and allowing for constructed outcrop Therefore, we expect the State to its implementing Federal regulations barriers was conditionally approved on interpret its definition of ‘‘material and whether the other requirements of January 21, 1981 (46 FR 5915, 5919). damage’’ in the same manner as we 30 CFR Parts 730, 731, and 732 have The conditional approval required the interpret the Federal definition. been met. State to provide specific design criteria Executive Order 13132—Federalism for constructed outcrop barriers. At time V. OSM’s Decision of approval, the State was not required Based on the above findings, we This rule does not have Federalism to define the term, paramount. The approve the amendments sent to us by implications. SMCRA delineates the purpose of both constructed and natural West Virginia. In addition, we are roles of the Federal and State outcrop barriers is to prevent slides and removing the required program governments with regard to the to control erosion. By requiring an amendments codified at 30 CFR regulation of surface coal mining and operator to construct an outcrop barrier 948.16(a), (dd), (ee), (oo), (tt), (xx), reclamation operations. One of the of impervious material with controlled (nnn), (ooo), (qqq), (sss), (vvv)(1) purposes of SMCRA is to ‘‘establish a discharge points, the State should be through (4), (zzz), (aaaa), (bbbb), (ffff), nationwide program to protect society able to ensure that the constructed (gggg), (hhhh), (iiii), (jjjj), (kkkk), (llll), and the environment from the adverse barrier will effectively control erosion (mmmm), (nnnn), (oooo), and (pppp). effects of surface coal mining and protect surrounding streams. Not all To implement this decision, we are operations.’’ Section 503(a)(1) of outcrop barriers need to be constructed amending the Federal regulations at 30 SMCRA requires that State laws with impervious material, such as clay, CFR Part 948, which codify decisions regulating surface coal mining and to control erosion. As proposed, it can concerning the West Virginia program. reclamation operations be ‘‘in be asserted that the State believes that We find that good cause exists under 5 accordance with’’ the requirements of it may be necessary to construct some U.S.C. 553 (d)(3) to make this final rule SMCRA. Section 503(a)(7) requires that outcrop barriers of impervious material effective immediately. Section 503(a) of State programs contain rules and whenever water quality is paramount. SMCRA requires that the State’s regulations ‘‘consistent with’’
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regulations issued by the Secretary Regulatory Flexibility Act This determination is based upon the pursuant to SMCRA. The Department of the Interior has fact that the State submittal which is the subject of this rule is based upon Executive Order 13211 ‘‘ Regulations determined that this rule will not have counterpart Federal regulations for That Significantly Affect the Supply, a significant economic impact on a which an analysis was prepared and a Distribution, or Use of Energy substantial number of small entities under the Regulatory Flexibility Act (5 determination made that the Federal On May 18, 2001, the President issued U.S.C. 601 et seq.). The State submittal regulation was not considered a major Executive Order 13211 which requires which is the subject of this rule is based rule. agencies to prepare a Statement of upon counterpart Federal regulations for Unfunded Mandates Energy Effects for a rule that is (1) which an economic analysis was considered significant under Executive prepared and certification made that This rule will not impose a cost of Order 12866, and (2) likely to have a such regulations would not have a $100 million or more in any given year significant adverse affect on the supply, significant economic effect upon a on any governmental entity or the distribution, or use of energy. Because substantial number of small entities. private sector. this rule is exempt from review under Accordingly, this rule will ensure that List of Subjects in 30 CFR Part 948: Executive Order 12866 and is not existing requirements previously expected to have a significant adverse promulgated by OSM will be Intergovernmental relations, Surface effect on the supply, distribution, or use implemented by the State. In making the mining, Underground mining. of energy, a Statement of Energy Effects determination as to whether this rule Dated: April 19, 2002. is not required. would have a significant economic Tim L. Dieringer, impact, the Department relied upon the National Environmental Policy Act Acting Regional Director, Appalachian data and assumptions for the Regional Coordinating Center. counterpart Federal regulation. Section 702(d) of SMCRA (30 U.S.C. For the reasons set out in the 1292(d)) provides that a decision on a Small Business Regulatory Enforcement preamble, 30 CFR part 948 is amended proposed State regulatory program Fairness Act as set forth below: provision does not constitute a major This rule is not a major rule under 5 Federal action within the meaning of U.S.C. 804(2), the Small Business PART 948—WEST VIRGINIA section 102(2)(C) of the National Regulatory Enforcement Fairness Act. Environmental Policy Act (NEPA) (42 This rule: a) Does not have an annual 1. The authority citation for Part 948 U.S.C. 4332(2)(C)). A determination has effect on the economy of $100 million; continues to read as follows: been made that such decisions are b) Will not cause a major increase in Authority: 30 U.S.C. 1201 et seq. categorically excluded from the NEPA costs or prices for consumers, process (516 DM 8.4.A). 2. Section 948.15 is amended in the individual industries, geographic table by adding a new entry in Paperwork Reduction Act regions or Federal, State, or local chronological order by ‘‘Date of government agencies; and c) Does not publication of final rule’’ to read as This rule does not contain have significant adverse effects on follows: information collection requirements that competition, employment, investment, require approval by the OMB under the productivity, innovation, or the ability 948.15 Approval of West Virginia Paperwork Reduction Act (44 U.S.C. of U.S.-based enterprises to compete regulatory program amendments. 3507 et seq.). with foreign-based enterprises. * * * * *
Date of publication Original amendment submission dates of final rule Citation/description
******* November 30, 2000; May 2, 2001; No- May 1, 2002...... Emergency rule provisions: CSR 38–2–3.12.a.1, a.2, a.2.B; 5.4.b.8, d.3; vember 28, 2001; February 26, 2002; 16.2.c.4. March 8, 2002. Policy/guidance documents submitted February 26, 2002: Attachments 1A; 2P; 3P and the updated listing (Administrative Record Number WV–1278); 4 ex- cept examples 1 and 3 through 8; 6; and 9. Policy/guidance documents submitted March 8, 2002: Attachments 1; 3A; and 8. In House Bill 2663: CSR 38–2–3.12.a.1; 3.14.a; 12.2.e; 12.4.e; 14.8.a.6; 16.2.c.4; and 24.4. In Senate Bill 689: W. Va. Code 22–3–13a(g), (j); 30a(a).
3. Section 948.16 is amended by (qqq), (sss), (vvv), (zzz), (aaaa), (bbbb), (llll), (mmmm), (nnnn), (oooo), and removing and reserving paragraphs (a), (ffff), (gggg), (hhhh), (iiii), (jjjj), (kkkk), (pppp). (dd), (ee), (oo), (tt), (xx), (nnn), (ooo), [FR Doc. 02–10759 Filed 4–30–02; 8:45 am] BILLING CODE 4310–05–P
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Part VI
Department of Agriculture 9 CFR Part 53 Foot-and-Mouth Disease Payment of Indemnity; Update of Provisions; Proposed Rule
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DEPARTMENT OF AGRICULTURE APHIS documents published in the may enter into with States and other Federal Register, and related cooperators in the control and Animal and Plant Health Inspection information, including the names of eradication of disease such as FMD. Service organizations and individuals who have However, APHIS continues to work commented on APHIS dockets, are with States and other cooperators in 9 CFR Part 53 available on the Internet at http:// developing appropriate response plans www.aphis.usda.gov/ppd/rad/ and strategies that entail the cooperative [Docket No. 01–069–1] webrepor.html. efforts of APHIS, other Federal agencies, States, and animal industries in the RIN 0579–AB34 FOR FURTHER INFORMATION CONTACT: Dr. Mark E. Teachman, Senior Staff event of an occurrence of FMD or other Foot-and-Mouth Disease Payment of Veterinarian, Emergency Programs, VS, disease covered by the regulations. We Indemnity; Update of Provisions APHIS, 4700 River Road Unit 41, recognize cooperative arrangements Riverdale, MD 20737–1231; (301) 734– with States and other cooperators are a AGENCY: Animal and Plant Health 8073. critical element in the control and Inspection Service, USDA. eradication of diseases such as FMD, SUPPLEMENTARY INFORMATION: ACTION: Proposed rule. and therefore invite your comments on Background this subject. SUMMARY: We are proposing to amend The Animal and Plant Health We are also proposing other changes the regulations pertaining to the control Inspection Service (APHIS) of the to the regulations that involve updating and eradication of foot-and-mouth United States Department of Agriculture certain provisions that would be disease and other serious diseases, (USDA or the Department) administers applicable to FMD. including for both cooperative programs The purpose of this proposed rule is regulations at 9 CFR part 53 (referred to and extraordinary emergencies. to remove possible sources of delay in below as the regulations) that provide Specifically, we are proposing changes achieving FMD eradication, should an for the payment of indemnity to owners in indemnity provisions primarily occurrence of that disease occur in this of animals that are required to be related to foot-and-mouth disease. The country. Under existing compensation destroyed because of foot-and-mouth proposed changes are prompted, in part, regulations, delays may occur because disease, pleuropneumonia, rinderpest, by a review of the regulations in light of of some producers’ perceptions on exotic Newcastle disease, highly the recent series of outbreaks of foot- receiving full payment, as well as pathogenic avian influenza, infectious and-mouth disease in the United because of current eradication program salmon anemia or any other Kingdom and elsewhere around the requirements. In the first instance, communicable disease of livestock or world. We believe these changes are delays can derive from livestock poultry that in the opinion of the necessary to ensure the success of a owners’ uncertainty of being fully Secretary of Agriculture constitutes an control and eradication program in the compensated for the fair market value of emergency and threatens the U.S. event of an occurrence of foot-and- destroyed animals, products, and livestock or poultry population. The mouth disease in the United States. materials, including livestock regulations authorize payments to be vaccinated as part of an FMD DATES: We will consider all comments based on the fair market value of the eradication program (official we receive that are postmarked, animals destroyed, as well as payments vaccinates). Owners of affected herds delivered, or e-mailed by July 1, 2002. for their destruction and disposal. The may also be uncertain that they will ADDRESSES: You may submit comments regulations also authorize payments for receive full compensation for cleaning by postal mail/commercial delivery or materials that must be cleaned and and disinfection costs. In the second by e-mail. If you use postal mail/ disinfected or destroyed because of instance, delays may be caused by commercial delivery, please send four being contaminated by or exposed to having to rely on appraisal for the copies of your comment (an original and disease. three copies) to: Docket No. 01–069–1, We recently reviewed the regulations valuation of livestock when an Regulatory Analysis and Development, to determine their adequacy in the event insufficient number of appraisers or PPD, APHIS, Station 3C71, 4700 River of an occurrence of foot-and-mouth other constraints would prevent timely Road Unit 118, Riverdale, MD 20737– disease (FMD). This review was destruction of infected and exposed 1238. Please state that your comment prompted, in part, by the recent series animals. This proposed rule sets forth refers to Docket No. 01–069–1. If you of outbreaks of FMD in the United regulatory changes to address these use e-mail, address your comment to Kingdom and elsewhere around the possible sources of delay. [email protected]. Your world. An occurrence of FMD in the Proposed Changes to 9 CFR Part 53 comment must be contained in the body United States could be devastating given of your message; do not send attached the Nation’s extensive holdings of Definitions files. Please include your name and livestock, poultry, and other animals. We are proposing to add to current address in your message and ‘‘Docket Besides the direct effects on producers § 53.1 definitions for the terms animals No. 01–069–1’’ on the subject line. of susceptible animals, the affected by disease, APHIS You may read any comments that we consequences of the disease could representative, breeding animal, receive on this docket in our reading ripple throughout the economy, causing commercial breeding animal, disease room. The reading room is located in indirect costs in other sectors. outbreak, donor animal, endangered or room 1141 of the USDA South Building, As a result of this review, we are threatened species, exotic animal, 14th Street and Independence Avenue proposing changes to the regulations Federal veterinarian, Livestock SW., Washington, DC. Normal reading relating to the valuation of animals and Marketing Information Center, market room hours are 8 a.m. to 4:30 p.m., materials and the payment of indemnity animal, National Veterinary Services Monday through Friday, except to claimants that relate primarily to Laboratories, official vaccinate, rare holidays. To be sure someone is there to FMD. We do not cover in this proposed animal, registered animal, seedstock help you, please call (202) 690–2817 rule these specific cooperative herd or flock, State representative, and before coming. arrangements that the Administrator State veterinarian.
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The term animals affected by disease animal other than a registered animal, Federal veterinarian; identified by an would refer to animals determined to be an animal that is part of a seedstock eartag specifically approved by APHIS infected with, infested with, or exposed herd or flock, or a donor animal. for identification of animals officially to, a disease covered by part 53. The The term disease outbreak would vaccinated for FMD; and reported to the term would also cover official refer to the initial occurrence of the Administrator as an official vaccinate vaccinates. The regulations currently disease, as determined and reported by for FMD promptly after vaccination by use the term ‘‘affected by or exposed to the United States Department of the State or Federal veterinarian disease’’ in discussing the valuation and Agriculture. supervising the vaccination. Because of destruction of animals eligible for A donor animal would be defined as our current focus on FMD, the term indemnification. In other animal health any animal, other than a registered official vaccinate would only include regulations promulgated by the Agency, animal or an animal that is part of a those animals that have been officially the terms ‘‘affected with’’ or ‘‘affected seedstock herd or flock, that has vaccinated for FMD. In the future, we by’’ apply to animals infected with a donated at least two embryos, in the may propose to amend the regulations disease or exposed to a disease agent. case of females, or at least 100 units of to include animals vaccinated for other Therefore, to avoid confusion, we semen, in the case of males, for sale to diseases. propose to use the term ‘‘animals another producer or transfer to a The term rare animal would mean an affected by disease’’ to cover both separate herd or flock. animal that is extremely uncommon in animals infected with a disease or The term endangered or threatened the United States and that is neither an exposed to a disease agent. The term species would refer to those species exotic animal nor a member of an ‘‘animals affected by disease’’ would defined as endangered species or endangered or threatened species. also cover ‘‘infested with’’ because part threatened species in the Endangered We would define a registered animal 53 could apply to animals affected by Species Act (16 U.S.C. 1531 et seq.) and as an animal of a particular breed for screwworm, ticks, or organisms other the regulations promulgated thereunder which individual records of ancestry are than bacteria, viruses, or other agents and as they may be subsequently maintained, and for which individual typically associated with infection. amended. registration certificates are issued and We would define an exotic animal as The regulations define APHIS recorded by a recognized breed any animal that is native to a foreign employee as any individual employed association whose purpose is the country or of foreign origin or character by APHIS who is authorized by the improvement of the breed. Administrator to do any work or or is not native to the United States. The term seedstock herd or flock perform any duty in connection with We would define a Federal would mean, in the case of cattle and the control and eradication of disease. veterinarian as a veterinarian employed sheep, a herd or flock in which, during The regulations define inspector in and authorized by the Federal the previous 5 years, at least 25 percent charge as an APHIS employee who is Government to perform the services of the animals born to the herd or flock designated by the Administrator to take required by part 53. A Federal have, for breeding purposes, been sold charge of work in connection with the veterinarian could be an APHIS to another producer or transferred to a control and eradication of diseases. We veterinarian or a veterinarian employed separate herd or flock, or, in the case of are proposing to remove references to by another agency of the Federal the terms APHIS employee and Government. swine, a herd in which at least 50 inspector in charge throughout the The Livestock Marketing Information percent of the gilts produced have, for regulations and replace them with the Center would refer to the organization breeding purposes, been sold to another term APHIS representative. An APHIS funded cooperatively by the United producer or transferred to a separate representative would be defined as any States Department of Agriculture, State herd. This definition represents our best individual employed by or acting as an land grant universities, and livestock estimates based on our observations of agent on behalf of APHIS who is industry associations that develops, the livestock industry. However, we authorized by the Administrator to disseminates and maintains economic recognize that a seedstock herd or flock perform the services required by part 53. and market data relating to the livestock is a concept that is evolving as a result We would make this change since, industry. of changes in technology and marketing, depending on the location and The term market animal would apply most notably in the swine industry. We magnitude of the disease occurrence, it to any animal being raised for the therefore solicit your comments and may not always be possible to use primary purpose of slaughter for meat, suggestions on this definition, including APHIS employees for all the services or, in the case of dairy animals, the alternative approaches for defining this authorized under the regulations. production of milk, or, in the case of term. Therefore, to reflect the possibility that certain sheep, the production of wool. The term State representative would we may have to contract for some of the We would define National Veterinary refer to an individual employed by a services covered by the regulations, we Services Laboratories as the State or a political subdivision to are proposing to use the term ‘‘APHIS organizational unit within the Animal perform the specified functions agreed representative’’ in place of ‘‘APHIS and Plant Health Inspection Service to by the Department and the State, employee’’ and ‘‘inspector in charge’’ delegated responsibility for providing while State veterinarian would refer throughout the regulations. services for the diagnosis of domestic specifically to a veterinarian employed We would define a breeding animal as and foreign animal diseases, diagnostic and authorized by a State or its political any animal that is raised for the purpose support for disease control and subdivision to perform the services of producing market animals or other eradication programs, import and export required by part 53. breeding animals and that, in the case testing of animals, training, and We would also amend definitions that of a female, has donated embryos or laboratory certification for selected already appear in current § 53.1 for the been bred, and in the case of a male, is diseases. terms Animal and Plant Health sexually intact and has reached the age We are proposing to define an official Inspection Service, disease, exotic of sexual maturity. vaccinate as any animal that has been: Newcastle disease, highly pathogenic We would define the term commercial Vaccinated with an official vaccine for avian influenza, materials, and breeding animal to cover any breeding FMD under the supervision of a State or Secretary.
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We would make a minor change to the definition of materials to also include exposed to such disease prior to or definition of Animal and Plant Health ‘‘any other article.’’ We would change during interstate movement and are not Inspection Service so that its recognized ‘‘farm products’’ to ‘‘agricultural eligible to receive indemnity from any abbreviation, ‘‘APHIS,’’ would appear as products or byproducts’’ in order to State, the Department may pay up to part of the term defined instead of in the include those products that may be 100 percent of the costs of the purchase, text of the definition. produced somewhere other than on a destruction, and disposition of animals Current § 53.1 defines disease as farm. We would add references to or materials required to be destroyed. FMD, rinderpest, contagious ‘‘bedding’’ and ‘‘conveyances.’’ We Current § 53.2 further provides that any pleuropneumonia, exotic Newcastle would also remove the words ‘‘parts of’’ cooperative program for the purchase, disease, highly pathogenic avian that precede the words ‘‘barns or other destruction, and disposition of birds is influenza, and infectious salmon structures’’ to make the provision easier limited to those birds that are anemia, or any other communicable to understand without changing its ‘‘identified in documentation pursuant disease that in the opinion of the substantive meaning. Based on these to Cooperative Agreements’’ as Secretary constitutes an emergency and proposed changes, we would define the constituting a threat to the U.S. poultry threatens the livestock or poultry of the term materials as barns or other industry. In addition, current § 53.2 United States. We are proposing to structures; straw, hay, and other feed provides that the Secretary of amend the definition of this term to and bedding for animals; agricultural Agriculture may authorize other more closely follow the various products and byproducts; conveyances; arrangements for the payment of statutory language for the control and equipment; clothing; and any other expenses covered in this section upon eradication of diseases. We propose to article. finding that an extraordinary emergency define the term disease as any The term Secretary is defined in exists. communicable disease of livestock or current § 53.1 as the Secretary of We are proposing to make a number poultry for which indemnity is not Agriculture of the United States, or any of changes to current § 53.2. Some of provided elsewhere in 9 CFR chapter I, officer or employee of the Department to these are minor changes to make the subchapter B, and contagious or whom authority has been or may be regulations easier to understand. We are infectious diseases of animals, such as delegated to act in the Secretary’s stead. also proposing changes to § 53.2 that are FMD, rinderpest, contagious We would simplify this term to mean more substantive in nature. pleuropneumonia, exotic Newcastle the Secretary of Agriculture of the We would change the section heading disease, highly pathogenic avian United States or any officer or employee ‘‘Determination of existence of disease; influenza, and infectious salmon of the Department authorized to act for agreements with States’’ to ‘‘Disease anemia, that, in the opinion of the the Secretary. control and eradication; payments Secretary, constitute an emergency or an We are also proposing to remove from authorized; determination of disease.’’ extraordinary emergency and threaten current § 53.1 the definitions of APHIS We are proposing this change so that the livestock or poultry of the United employee, inspector in charge, the section heading better reflects the States. The revised definition would mortgage, and pet bird. As discussed order of topics covered under § 53.2 and also clarify that diseases covered under previously, we are proposing to use its scope of coverage. We would also part 53 would not include those APHIS representative in place of APHIS delete some of the language from diseases covered by indemnification employee and inspector in charge current paragraph (a) and reorganize a regulations elsewhere in 9 CFR chapter throughout the regulations, and, revised version of the remainder of I, subchapter B, such as tuberculosis, therefore, no longer require definitions current § 53.2(a) and (b) into a new brucellosis, pseudorabies, and scrapie. of these terms. We do not believe a paragraph (a). We would make a minor technical definition of mortgage is necessary We would clarify that the Department correction to the definition of exotic because our use of the term in the may cooperate not only with States, but Newcastle disease as it currently regulations is in keeping with the also with political subdivisions of appears in § 53.1 by not capitalizing the dictionary meaning. The term pet bird is States, farmers’ associations and similar word ‘‘disease.’’ no longer used in the regulations. organizations, and individuals in the We are also proposing to make a Disease Control and Eradication, control and eradication of disease. We technical correction, for purposes of Payments Authorized, Determination of would refer to these other potential clarification, to the definition of highly Disease cooperators to be consistent with the pathogenic avian influenza. We would Current § 53.2 provides that the statutory language on this subject. In the add the words ‘‘in the test described in Administrator is authorized to agree to absence of an extraordinary emergency, paragraph (1) of this definition’’ to cooperate with a State in the control and we would continue to provide that the immediately follow the words ‘‘one to eradication of those diseases covered by Administrator would pay costs covered five chickens’’ in the third paragraph of the regulations. Current § 53.2 further under § 53.2 upon agreement of the the definition. provides that, upon agreement with the States or others to cooperate in the The regulations currently define the State, the Administrator is authorized to control and eradication of the disease. term materials to include parts of barns pay 50 percent of the expenses of the We would remove the specific language or other structures, straw, hay, and other purchase, destruction, and disposition requiring that such agreement is subject feed for animals, farm products or of animals and materials required to be to the State agreeing to enforce equipment, clothing, and articles stored destroyed because of being quarantine restrictions and directives in or adjacent to barns or other contaminated by or exposed to such properly issued in the control and structures. The existing definition disease, except that for infectious eradication of disease, since there may focuses primarily on articles or objects salmon anemia the Administrator is be a number of activities relating to the associated with farms. However, it is authorized to pay 60 percent of those control and eradication of disease that possible that locations other than farms, costs, and for exotic Newcastle disease States and other cooperators would such as slaughtering facilities and other or highly pathogenic avian influenza, agree to perform in fulfilling their livestock concentration points, could be the Administrator is authorized to pay cooperative obligations. We would add contaminated by or exposed to a disease up to 100 percent of those costs. Current that the payment of costs provided in agent. Therefore, we would broaden the § 53.2 also states that, if animals are proposed § 53.2 by the Administrator
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would be subject to the availability of are imperative if losses are to be We would consider compensable funding. Throughout proposed § 53.2, minimized. Authorizing the costs relating to care and feeding to we would also make a stylistic change Administrator to pay 100 percent of the include those operating costs that are by substituting the word ‘‘costs’’ in costs for the purchase, destruction, and fair and reasonable and are directly place of ‘‘expenses.’’ disposition of animals affected by FMD, attributable to maintaining the animals, In describing those costs eligible for 100 percent of the costs for cleaning and such as costs for veterinary services and indemnification under a cooperative disinfection of materials contaminated medicines, bedding and litter, fuel and program, current § 53.2(b) refers to ‘‘the by or exposed to FMD, and 100 percent electricity, repairs, allocated hired labor, expenses of purchase, destruction and of the costs for the purchase, and feed. Claims for such costs could be disposition of animals and materials destruction, and disposition of such based on receipts or other required to be destroyed because of materials when the cost of cleaning and documentation submitted to the being contaminated by or exposed to disinfection would exceed the value of Administrator that would verify a such disease.’’ the materials or cleaning and claimant’s costs for care and feeding of We would change this disinfection would be impracticable, official vaccinates. Certain livestock and characterization by referring to animals would reassure livestock industries of feed assistance programs administered ‘‘affected by disease.’’ We would the Department’s full commitment to by USDA’s Farm Services Agency (FSA) continue to use the term ‘‘contaminated eradication, thereby helping to bolster provide that compensation for feed may by or exposed to’’ when referring to the cooperation of affected parties. also be calculated based upon rates that materials. However, we would make a We would also expressly provide are tied to pre-established energy or technical change for purposes of compensation for official vaccinates nutrient maintenance requirements clarification by referring to materials as destroyed because of FMD. Vaccination designed to meet the daily maintenance contaminated by or exposed to ‘‘a of animals for FMD may be part of our needs of different types and weight disease agent.’’ cooperative control and eradication classes of livestock. The subject of sharing cleaning and strategy should FMD be introduced into We solicit your comments that disinfection costs is currently covered the United States. Specifically, specifically address the appropriateness by § 53.7 of the regulations. We are susceptible animals at a certain distance of, and need for, providing proposing that this subject be covered in from an occurrence may be vaccinated compensation to producers for costs proposed § 53.2 so that § 53.2 would to help prevent the spread of the relating to the care and feeding of reference all costs for which payments disease. Subject to certain exceptions official vaccinates in the event of FMD. are authorized. that may include exotic or rare animals We further invite your comments on the We are proposing that, in the case of or endangered or threatened species, as types of costs that should be eligible for a cooperative program for FMD, the discussed below in our proposed compensation, and the most suitable Administrator will pay 100 percent of changes to § 53.4, vaccinated animals means for determining such costs ( i.e., the costs for: would be destroyed as part of an FMD through receipts or other • Purchase, destruction, and eradication program. documentation, pre-established animal disposition of animals affected by FMD, Because nonvaccinated animals energy or nutrient maintenance including official vaccinates; and affected with FMD would be destroyed requirements, or some other means). We • Cleaning and disinfection of first, it may be necessary for vaccinated also solicit your comments on the materials that are contaminated by or animals to be held on a premises for an amount of expenditures that might be exposed to FMD, and the purchase, indeterminate length of time prior to incurred in the care and feeding of destruction, and disposition of such destruction. During this period, official vaccinates over a particular time materials when the cost of cleaning and producers would be responsible for the duration, such as one or two months. disinfection would exceed the value of care and feeding of their vaccinated We would also make a technical the materials or cleaning and animals. The regulations currently do change to current § 53.2 with regard to disinfection would be impracticable. not provide compensation for care and cooperative programs for the purchase, In the case of costs for cleaning and feeding of animals. However, we are destruction, and disposition of birds. disinfection of materials because of seriously considering whether the We would provide that the birds FMD, we would require that such costs regulations should authorize covered under such a program would be be ‘‘fair and reasonable’’ based on the compensation to cover all or part of the ‘‘determined by the Administrator’’ as plain meaning of that phrase. As costs of care and feeding of official constituting a threat to the U.S. poultry discussed below, these types of costs vaccinates awaiting destruction. industry instead of ‘‘identified in would be verified based on receipts or Compensating producers for the care documentation pursuant to Cooperative other similar documentation submitted and feeding of official vaccinates would Agreements’’ as constituting such a by the claimant. The concept of ‘‘fair help remove any reluctance by threat. and reasonable’’ would allow for producers to have their herds We are also proposing to remove from compensation that takes into account vaccinated as part of a cooperative current § 53.2 the reference to the that costs incurred for these items or program to control and eradicate FMD. Secretary’s authority to make other services may vary from region to region. Without providing such financial arrangements for the payment of We are proposing these indemnity assistance, there could be a disincentive expenses upon finding that an changes in the case of FMD to provide on the part of producers to cooperate extraordinary emergency exists. The the Administrator with sufficient and participate in the program since the specific reference is not necessary resources and flexibility to effectively costs of care and feeding would, in because the proposed indemnity control and eradicate any occurrence of effect, offset the producers’ provisions for the destruction of animals FMD in this country. An FMD compensation for these animals. Should and materials would apply both to occurrence in the United States could be paying for this activity be a cooperative compensation programs as devastating, given the Nation’s responsibility of the producer or of the well as in the case of an extraordinary extensive livestock holdings. We believe Federal Government through the emergency. The basis for the payments that effective disease control strategies payment of compensation? We would of compensation for animals or at the first sign of an FMD occurrence like your comments on this subject. materials destroyed under a cooperative
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program or in the case of an contaminated by or exposed to a disease payment relating to costs of cleaning extraordinary emergency would be the agent. and disinfection. fair market value. We would clarify in Proposed § 53.3(a) would include Payments for Animals and Materials, proposed § 53.2(a)(2) that when the much of the information that already Other Compensation, Request for Secretary determines that an appears in the regulations for the Review extraordinary emergency exists, the valuation of animals, but with certain Administrator would pay, subject to the Current § 53.3 covers the appraisal of important changes. Instead of referring availability of funding, 100 percent of animals or materials eligible for to animals ‘‘affected by or exposed to the costs (i.e., the fair market value) for indemnification. Paragraph (a) of disease,’’ we would refer to animals the purchase, destruction, and current § 53.3 provides that animals ‘‘affected by disease’’ for the reasons disposition of animals and materials. affected by or exposed to disease, as discussed previously. Proposed § 53.3(a) Payment of 100 percent of the costs for well as materials required to be would now also apply to the valuation animals and materials in the case of an destroyed because of being of official vaccinates in the case of FMD. extraordinary emergency would apply contaminated by or exposed to disease, Proposed § 53.3(a) would provide that to all diseases covered by the shall be appraised jointly by an APHIS the value of animals affected by disease regulations. However, any payment by employee and a State representative, or, and subject to destruction would be the the Administrator could not exceed the if the State authorities approve, by an fair market value based on appraisal of difference between the compensation APHIS employee alone. the animals, subject to an exception received from a State or other source Paragraph (b) of current § 53.3 states related to FMD as explained below. We and the fair market value of the animals that the appraisal of animals shall be would remove the reference that the fair or materials. based on the animal’s fair market value market value be based on the ‘‘meat, egg As discussed previously, current according to its meat, egg production, production, dairy or breeding value of § 53.2(a) and (b), revised as described dairy, or breeding value. Paragraph (b) such animals’’ since fair market value above, would become new § 53.2(a). We also provides that animals may be may also reflect other factors as well. would then add a new paragraph (b) to appraised in groups, provided the We are proposing that, in the case of § 53.2. Proposed § 53.2(b) would animals are of the same species and FMD, if the Administrator determines provide the basis for determining that type. Paragraph (b) states that when that appraisal is impracticable or would animals are affected by disease or that appraisal is ‘‘by the head,’’ each animal otherwise compromise efforts to materials are contaminated by or in the group will be valued at that same effectively control and eradicate the exposed to a disease agent. Under value per head and when appraisal is disease, the Administrator may proposed § 53.2(b)(1), the determination ‘‘by the pound,’’ each animal in the determine the fair market value of that animals are affected by disease group will be valued at that same per- animals by a fixed-rate method in lieu would be made by either a Federal pound value. of appraisal. We would make this veterinarian or a State veterinarian who Paragraph (c) of current § 53.3 change because the virulence and has completed the APHIS course on provides that appraisals of animals shall potential magnitude of FMD may make foreign animal disease diagnosis. This be reported on forms furnished by appraisal impracticable, and actually particular course is currently offered at APHIS that show the number of animals compromise our ability to control and APHIS’ Foreign Animal Disease of each species and the value per head eradicate the disease due to the time, Diagnostic Laboratory, located at Plum or the weight and value per pound. personnel, and other resources that Island, NY. Paragraph (d) of current § 53.3 provides would be required to conduct The determination that animals are that appraisals of materials shall be appraisals. In addition, the weighing of affected by disease would be based on reported on forms furnished by APHIS animals subject to destruction would factors such as clinical evidence of the that show, when practicable, the not likely be an option in the case of disease (signs, necropsy lesions, and number, size or quantity, unit price, and FMD because of time limitations and history of the occurrence of the disease), total value of each kind of material movement restrictions. The use of a diagnostic tests for the disease based on appraised. fixed-rate method instead of appraisal protocols approved by the National We are proposing to make a number would entail less contact with affected Veterinary Services Laboratories, or of changes to current § 53.3 both in animals and fewer visits to affected epidemiological evidence. By terms of organization and content. We premises by APHIS representatives and epidemiological evidence, we mean would change the section heading of State representatives, thereby lowering evaluation of the clinical evidence and current § 53.3 from ‘‘Appraisal of the risk in the transmission of FMD. the degree of risk posed by the potential animals or materials’’ to ‘‘Payments for Having in place a mechanism for spread of the disease based on the animals and materials; other establishing fixed rates without the need disease’s virulence, its known means of compensation; request for review.’’ We for additional rulemaking at the time of transmission, and the particular species would make this change to be consistent an FMD occurrence would also facilitate involved. A copy of the protocols for with our proposal, as discussed below, quicker compensation to affected diagnostic tests of diseases covered by of providing means other than appraisal claimants, thus bolstering the part 53 would be available by writing for determining the value of animals cooperation of affected parties and Emergency Programs, Veterinary and materials in the case of FMD. contributing to the overall effectiveness Services, Animal and Plant Health Under proposed § 53.3, paragraph (a) of the eradication program. Inspection Service, USDA, 4700 River would cover the valuation of animals, Proposed § 53.3(a)(1) would contain Road Unit 41, Riverdale, MD 20737– paragraph (b) would cover the valuation the requirements for determining the 1231. of materials, paragraph (c) would cover fair market value of animals based on Under proposed § 53.2(b)(2), the other compensation allowed by the the appraisal method. We would APHIS representative or State regulations (i.e., costs for cleaning and continue to require that the appraisal be representative, with the guidance of a disinfection), and paragraph (d) would conducted jointly by an APHIS Federal veterinarian or a State cover the process for a claimant to representative and a State veterinarian, would be authorized to request a review of the valuation of representative, or, if the State determine whether materials are animals or materials, or the amount of authorities approve, by an APHIS
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representative alone. We would also Proposed § 53.3(a)(2)(i) sets forth how animals, animals in a seedstock herd, continue to provide that animals may be we would classify animals for purposes and donor animals. appraised in groups, provided that they of setting rates. Animals would first be Dairy cattle: Dairy bulls; and are of the same species and type and classified as either market animals or registered animals, animals in a provided that, where appraisal is by the breeding animals. Market animals seedstock herd, and donor animals. head, each animal in the group would would include those animals raised for • Swine: Sows and boars (commercial be the same value per head, or where the primary purpose of slaughter for herds) and registered animals, animals appraisal is by the pound, each animal meat or, in the case of dairy animals, the in a seedstock herd, and donor animals. in the group would be the same value production of milk, or, in the case of • Sheep: Ewes and rams (commercial per pound. certain sheep, the production of wool. flocks) and registered animals, animals Proposed § 53.3(a)(2) would set forth Breeding animals would include those in a seedstock flock, and donor animals. the basic criteria for determining the fair animals that are raised for the primary We have attempted to select market value of animals under a fixed- purpose of producing market animals or commonly-used animal classifications rate method, if authorized by the other breeding animals and that, in the with logical breakpoints that would be Administrator in the case of FMD. Rates case of females, have donated embryos easily understandable to the livestock would be established on a per-head or been bred, and in the case of males, industry as well as to APHIS and State basis for beef and dairy cattle, swine, are sexually intact and have reached the representatives. We are restricted in and sheep. This group of animals would age of sexual maturity. For example, a providing more extensive classifications likely represent the vast majority of registered dairy bull that is sexually based on an animal’s weight since it is animals that would be affected by FMD immature would not be considered a unlikely that we would be able to and subject to depopulation. Rates may breeding animal for purposes of individually weigh animals in the event be established for other animals for compensation. of an FMD occurrence. We believe, which the Administrator finds sufficient We would establish additional however, that use of these proposed information publicly available to make classifications for both market animals classifications will allow claimants to a calculation of the animal’s fair market and breeding animals. For each receive fair market value for animals value in accordance with the procedures classification, we would establish a destroyed. We invite your comments provided in proposed § 53.3(a)(2). single per-head rate to be paid to all regarding the above classifications for Otherwise, the value of other animals animals within that classification. setting fixed rates, including your affected by disease would be Market animals would be further suggestions for alternative approaches to determined by appraisal as provided in classified according to their production classifying animals for purposes of proposed § 53.3(a)(1). We invite your phase, including whether or not the establishing rates. Proposed § 53.3(a)(2)(ii) would comments and suggestions on the fixed- animals are weaned and whether or not provide the procedures for establishing rate method, including your comments the animals are on finishing rations ( i.e., fixed rates for different classifications of and suggestions for setting fixed rates at a feedlot or finishing barn). We are market animals. As discussed for animals susceptible to FMD other proposing to establish rates for market previously, we are proposing to define than beef and dairy cattle, swine, and animals for each of the following sheep. We have not proposed fixed rates a market animal as any animal being classifications: raised for the primary purpose of for goats at this time because we have • Cattle. not developed rate criteria that we Beef cattle: Preweaned calves; non- slaughter for meat, or, in the case of believe suitably encompasses the feedlot, but weaned (stocker) animals; dairy animals, the production of milk, different market and breeding and feedlot animals. or, in the case of certain sheep, the classifications for goats. Similarly, we Dairy cattle: Commercial dairy cows production of wool. have not included the means for (female dairy cows that are or have been In proposed § 53.3(a)(2)(ii)(A), we establishing fixed rates for in milk), non-bred heifer replacements provide that the rates for different nontraditional animals susceptible to and sexually immature bulls, and bred classifications of beef cattle (preweaned FMD such as llamas, farmed cervids heifer replacements. calves; non-feedlot, but weaned (deer and elk), and buffalo. We invite • Swine: Grower-finisher pigs, (stocker) animals; and feedlot animals) your comments and suggestions for nursery pigs, and preweaned piglets. would be based on prices from establishing fixed rates for these • Sheep: Preweaned lambs, weaned applicable futures contracts traded on animals. feeder lambs, slaughter lambs, and the Chicago Mercantile Exchange. The In establishing fixed rates, we would wethers raised for wool production. rates for preweaned calves and stocker set a uniform rate for each of the Breeding animals would be further animals would be based on the feeder proposed animal classifications. We classified, based on whether they are cattle futures contract, while the rate for would do this, in part, because we commercial breeding animals, or are feedlot animals would be based on the would use price data that generally registered animals, part of a seedstock live cattle futures contract. The rates for reflect national rather than regional herd or flock, or donor animals. We each of these market animal conditions. We are also proposing a would set up these classifications to classifications would be calculated by system of national uniform rates to recognize the generally higher value of multiplying the applicable futures price facilitate implementation of an FMD registered or seedstock animals, as well by the estimated weight set by APHIS. eradication program. In proposing a as animals that have donated embryos It is necessary to multiply the futures system of national uniform rates, we or semen, in comparison to commercial price by an assigned compensation realize there is a potential of breeding animals. We are proposing to weight because futures prices are overlooking regional market disparities. establish rates for breeding animals for reported as a price per hundredweight We invite your comments on the use of each of the following classifications: (cwt) instead of a price per head. A a national uniform fixed rate for each of • Cattle. hundredweight is a unit of weight equal the animal classifications, as well as Beef cattle: Beef cows (commercial to 100 pounds. We would use an your suggestions on alternative herds); bred replacement heifers estimated weight for each animal approaches to using national uniform (commercial herds); beef bulls classification instead of the animal’s fixed rates. (commercial herds); and registered actual weight since we do not expect it
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to be practicable to individually weigh time period going back from the time of economic information. The LMIC also animals in the event of an FMD the disease outbreak. By using a 3- maintains a comprehensive database on occurrence. month time period, we could take into price, production, consumption, trade, The advantage of basing rates on account any possible anomalies, and other livestock industry data. The futures contract prices, when available, distortions, or other unique events that LMIC is funded by State land grant is that traditional livestock pricing is may have occurred in the marketplace universities, USDA, and livestock disappearing. Most buyers and sellers in the weeks prior to the outbreak of industry associations whose missions now participate in the futures markets. FMD. We invite your comments on include supporting and conducting Therefore, futures prices would best establishing rates based on a 3-month education and research. We invite your represent national market conditions, as average of prices. comments on the appropriateness of well as provide the most current price Under proposed § 53.3(a)(2)(ii)(A)(2), using price-weight adjustment factors, information. Further, there is a greater the estimated weight set for different as well as using the LMIC as our source lag factor in obtaining similar price data classifications of beef cattle would be for obtaining this information. The from other publicly-available sources. the average weight of animals in that application of price-weight adjustments When using futures contracts, we would production phase based on the most in connection with the establishment of select contracts that most closely recently available information from fixed rates is illustrated further in the parallel the production phase of the USDA’s National Agricultural Statistics example provided under the heading animal classification for which we are Service (NASS) and National Animal ‘‘Appendix—Establishing Fixed Rates.’’ establishing rates. We invite your Health Monitoring System (NAHMS). Proposed § 53.3(a)(2)(ii)(B) would set comments as to the appropriateness of We would also use NASS and NAHMS forth the criteria for establishing rates using futures prices for determining information in determining the for dairy cattle under the market animal fixed rates, and specifically futures estimated weights for other animal classification. This would include contracts traded on the Chicago classifications, as discussed below. commercial dairy cows, non-bred heifer Mercantile Exchange. Publicly-available data compiled by replacements and sexually immature Proposed § 53.3(a)(2)(ii)(A)( 1) NASS and NAHMS on a national basis bulls, and bred heifer replacements. provides that, in using futures prices as would provide a sufficient basis for Bred heifer replacements would be a basis for establishing rates for beef determining representative estimated classified as market animals on the cattle, we would take the simple average weights for different animal assumption that they will become milk of the most recently available daily classifications. We invite your cows. However, if the bred heifer futures prices over a 3-month period comments on using NASS and NAHMS replacements are registered animals, or immediately prior to the date of the data for this purpose, as well as your are part of a seedstock herd, or have disease outbreak using the futures suggestions on the use of other donated at least two embryos that have contract month that corresponds to the information sources in establishing the been sold to another producer or month of the disease outbreak, or the estimated weights for different animal transferred to a separate herd, their rate next succeeding contract month if there classifications. will be determined based on their is not an applicable futures contract for Proposed § 53.3(a)(2)(ii)(A)(3) classification as breeding animals. the month that corresponds to the provides that, if the estimated weight for There are no suitable futures contract month of the disease outbreak. In taking a particular classification of animal is prices for valuing dairy cattle. futures prices over a 3-month period, we outside the specified weight range of the Therefore, we would look to other would go back from the time of the animals covered by the selected futures sources for price information. NASS disease outbreak. So if an outbreak was contract, then an upward or downward reports quarterly prices received by reported by USDA on August 15, we adjustment in the average futures price producers for cows sold for milking would go back 3-months in time from would be made to reflect this weight purposes. We are proposing to use this that date. In the case of preweaned difference and to account for the fact price series as the basis for determining calves, however, the applicable futures that the price per cwt varies with the the value of dairy cattle. Rates for price would be the simple average of the total weight of the animal. The commercial dairy cows would be based most recently available daily future adjustment would be calculated by on the most recent quarterly price per prices for that animal over a 3-month multiplying the price-weight adjustment head reported by NASS. The rate for period using the futures contract month factor, as determined by the Livestock non-bred heifer replacements and that corresponds to the month the Marketing Information Center, by the sexually immature bulls would be 70 claimant has historically weaned their difference between the average weight percent of the rate determined for calves, or the next succeeding contract of the animal covered by the futures commercial dairy cows. The lower rate month if there is not an applicable contract and the estimated weight set by for non-bred heifer replacements and futures contract for the month that APHIS. sexually immature bulls would reflect corresponds to the month of planned The formula for calculating the price- the fact that these are younger animals weaning. We would make this one weight adjustment, sometimes referred with lower paid-in costs. The rate for exception in the case of preweaned to as a slide adjustment, is a common bred heifer replacements would be 120 calves since the estimated weight would industry practice. Price-weight percent of the rate determined for be based on the average weaning weight adjustment factors or ‘‘slide factors’’ are commercial dairy cows. The higher rate for these animals. not published, but can be readily for bred heifer replacements would Because markets and pricing determined from a variety of livestock reflect the value of their milk and mechanisms could be seriously industry sources. We are proposing to breeding potential. We invite your disrupted as a result of FMD, use price-weight adjustment factors comments for establishing rates for establishing fixed rates based on market determined by the Livestock Marketing dairy cattle, including the proposed activity prior to the disease outbreak Information Center. The Livestock percentages that would be used in would likely be most appropriate. In our Marketing Information Center (LMIC) determining the rates for non-bred proposed standards for setting rates, we develops and produces materials for the heifer replacements and sexually generally establish compensation rates livestock industry, including electronic immature bulls, as well as for bred based on price averages over a 3-month market updates, newsletters, and other heifer replacements.
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Proposed § 53.3(a)(2)(ii)(C) would set reported by AMS on a weekly basis. In example provided under the heading forth the standards for establishing rates establishing the rate for preweaned ‘‘Appendix—Establishing Fixed Rates.’’ for the different market animal piglets, we would take the simple Proposed § 53.3(a)(2)(iii) would classifications covering swine. These average of the most recently available contain the standards for establishing would include grower-finisher pigs, prices reported by AMS over a 3-month fixed rates for different classifications of nursery pigs, and preweaned piglets. period immediately prior to the date of breeding animals. As discussed Proposed § 53.3(a)(2)(ii)(C)(1) would the disease outbreak. previously, we are proposing to define base the rate for grower-finisher pigs on Proposed § 53.3(a)(2)(ii)(D) would set a breeding animal as any animal that is the lean hogs futures contract that is forth the standards for setting rates for raised for the purpose of producing traded on the Chicago Mercantile the different market animal market animals or other breeding Exchange. The rate would be calculated classifications for sheep. These would animals and that, in the case of a female, by multiplying the applicable futures include preweaned lambs, weaned has donated embryos or been bred, and price by the estimated weight set by feeder lambs, slaughter lambs, and in the case of a male, is sexually intact APHIS for grower-finisher pigs. The wethers raised for wool production. and has reached the age of sexual applicable futures price for grower- There are no suitable futures contracts maturity. finisher pigs would be the simple to use to set rates for these different Proposed § 53.3(a)(2)(iii)(A) would average of the most recently available classifications of sheep. So we would provide that the rates for breeding daily futures prices over a 3-month instead use the national lamb carcass animals would be determined based on period immediately prior to the date of price that is reported by AMS on a the rates of other market or breeding the disease outbreak using the futures weekly basis to establish them. Rates animals, and then adjusted to include contract month that corresponds to the would be determined by multiplying the any premium that reflects the animals’ month of the disease outbreak, or the average AMS price by the estimated breeding value. For example, the rate for next succeeding contract month if there weight set by APHIS for that commercial sows or boars would be is not an applicable futures contract for classification of animal. The average determined by taking the rate for a the month that corresponds to the AMS price would be the simple average grower-finisher pig and then adding a month of the disease outbreak, and of the most recently available national percentage premium to reflect its multiplying that simple average by 74 lamb carcass prices reported by AMS breeding value. To mirror their higher percent. We would multiply the average over a 3-month period immediately value in the marketplace, breeding futures price by 74 percent because the prior to the date of the disease outbreak, animals that are registered animals, are lean hogs futures contract price is based multiplied by the AMS reported part of a seedstock herd, or have on the slaughter (carcass) price and not dressing percentage. We would multiply donated germ plasm that has been sold on live animals. A hog carcass weighs the average AMS price by the dressing to another producer or transferred to a approximately 74 percent of a live hog. percentage because this particular AMS separate herd or flock, would receive a The weight difference is due to dressing. price is a carcass price and not based on higher premium than commercial The estimated weight set by APHIS the live animal. If AMS does not report breeding animals. Proposed paragraphs would be the average weight of grower- a dressing percentage, then 49.5 percent (a)(2)(iii)(B) through (E) of § 53.3 would finisher pigs based on the most recently would be used. The dressing percentage, provide further information on available information from NASS and when reported, typically averages establishing breeding animal rates for NAHMS. between 49 and 50 percent. different classifications of beef and In the case of nursery pigs, we do not The estimated weight set by APHIS dairy cattle, swine, and sheep. The believe that existing futures contract for preweaned lambs, weaned feeder process for establishing rates for prices for hogs would provide a suitable lambs, and slaughter lambs would be different classifications of breeding means for valuing pigs in this early the average weight of animals in that animals is also illustrated in the phase of production. Under proposed production phase based on the most example provided under the heading § 53.3(a)(2)(ii)(C)(2), we would instead recently available information from ‘‘Appendix—Establishing Fixed Rates.’’ use the national feeder pig (40 lb) price NASS and NAHMS. The estimated The valuation of breeding animals, that is reported weekly by USDA’s weight set by APHIS for wethers raised including the assignment of certain Agricultural Marketing Service (AMS). for wool production would be the same premiums, is based on our best We believe that this AMS price series as that set by APHIS for slaughter lambs. estimates from available data and our would provide a better measure of the In addition, for preweaned lambs and observations of the livestock fair market value for young pigs in this weaned feeder lambs, an upward or marketplace. In establishing rates for particular production phase. In downward percentage adjustment in the breeding animals, we looked at price establishing the rate for nursery pigs, we average AMS price would be made to information from auction markets, breed would take the simple average of the reflect the difference in weight between associations, and similar sources, when most recently available national feeder preweaned lambs or weaned feeder available. We also conferred with pig prices reported by AMS over a 3- lambs and slaughter lambs. The price- agricultural economists and other month period immediately prior to the weight adjustment would be supplied livestock specialists within USDA. date of the disease outbreak. The AMS by LMIC. This price-weight adjustment However, we recognize that publicly- price is reported on a per-head basis, so will generally be positive, except during available price information on breeding it would not be necessary to estimate periods of high feed costs. animals is not as extensive as that on the weight for this classification of We invite your comments on our market animals. We, therefore, solicit swine. proposed standards for the your comments and suggestions on this Similar to nursery pigs, we do not establishment of rates for market issue, including alternative approaches believe that the existing futures animals, as just discussed, including for the valuation of breeding animals. contracts would be a good means of a your suggestions for alternative We also realize that, particularly in fair market value rate for preweaned approaches for the valuation of market the case of breeding animals, there is a piglets. Under proposed animals. The process for establishing greater potential for variations in value § 53.3(a)(2)(ii)(C)(3), we would use the rates for different classifications of within the same category or national early weaned pig (10 lb) price market animals is also illustrated in the classification of animals in comparison
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to market animals. As discussed below animals and are registered animals, part criteria to cover this situation. So under proposed § 53.3(d), claimants of a seedstock herd, or donor animals owners that believe their swine breeding who disagree with the valuation of their would receive a rate equal to 300 animals merit a higher valuation under animals would have the opportunity to percent of the rate established for these circumstance could submit a submit a written request for review to commercial beef cows. We invite your written request for review to the the Administrator, explaining why the comments on the proposed percentage Administrator, as discussed in proposed valuation of their animals should be premiums for these animals. We are § 53.3(d). We invite your comments on different than the value determined proposing higher rates for registered this issue, including your suggestions under the fixed-rate method. The animals, animals that are part of a for alternative approaches for the claimant would have the opportunity to seedstock herd, and donor animals to valuation of swine breeding animals. submit any documentation on the reflect their higher value in the Proposed § 53.3(a)(2)(iii)(E) would animals’ breeding value that would marketplace in comparison to provide the standards for establishing support a valuation different from the commercial breeding animals. Our rates for sheep that qualify as breeding one determined through application of proposed procedures for establishing animals. This would include ewes and the fixed-rate method. rates for other breeding animals would rams (commercial flocks), as well as Proposed § 53.3(a)(2)(iii)(B) would also follow this same policy. registered animals, animals in a contain the standards for setting rates Proposed § 53.3(a)(2)(iii)(C) would seedstock flock, and donor animals. for beef cattle that qualify as breeding contain the standards for setting rates We are proposing that rates for animals. This includes beef cows for dairy cattle that are breeding commercial ewes and rams would be (commercial herds); bred replacement animals. We would have a rate based on the same formula used to heifers (commercial herds); beef bulls classification for dairy breeding bulls. calculate the rate for slaughter lambs. (commercial herds); and registered We are proposing that the rate for dairy The slaughter lamb price is greater than animals, animals in a seedstock herd, bulls would be 250 percent of the rate the cull ewe slaughter price or the cull and donor animals. established for commercial dairy cows. ram slaughter price. By providing the The rate established for beef cows We would also have a separate rate higher lamb slaughter price for breeding would be based on the same formula classification for dairy cows and bred ewes and rams and applying the used to calculate the rate for beef cattle replacement heifers that are registered breeding animal weight, we recognize a that are feedlot animals. A comparison animals, part of a seedstock herd, or premium that these breeding animals of fed beef cattle prices and prices for donor animals. The rate for these might receive. We would take the bred young females and middle age particular animals would be 250 percent average AMS price ($/cwt) determined cows (Drovers’ Journal) found that bred of the rate established for commercial for slaughter lambs, as discussed cow prices were 83 percent of fed beef dairy cows. In the case of dairy breeding previously in proposed cattle prices. Though the premium for bulls that are also registered animals, § 53.3(a)(2)(ii)(D), and multiply that breeding purposes is not readily known, part of a seedstock herd, or donor average price by the estimated weight we note that by providing the same animals, we would set a rate that is 300 set by APHIS for commercial ewes and compensation rate ($/cwt) for percent of the rate established for rams. The estimated weight set by commercial breeding beef cows as is commercial dairy cows. We invite your APHIS for commercial breeding ewes used for feedlot beef cattle would comments on the proposed percentage and rams would be the average weight provide some measure of the value premiums for these animals. of those animals based on the most given for breeding purposes. In Proposed § 53.3(a)(2)(iii)(D) would recently available information from calculating the rate for beef cows, we contain the standards for establishing NASS and NAHMS. would use the same average futures rates for swine that are considered Breeding ewes that are also registered price ($/cwt) as used for feedlot breeding animals. We would have a rate animals, part of a seedstock flock, or animals, and multiply the applicable classification for commercial sows and donor animals, would receive a rate futures price ($/cwt) by the estimated boars. We are proposing that the rate for equal to 200 percent of the rate weight set by APHIS for beef cows. The commercial sows and boars would be established for commercial breeding estimated weight set by APHIS would 200 percent of the rate established for ewes. Similarly, breeding rams that are be the average weight of beef cows grower-finisher pigs. We would also also registered animals, part of a based on the most recently available have a second rate classification for seedstock flock, or donor animals, information from NASS and NAHMS. breeding swine that are registered would receive a rate equal to 200 For bred replacement heifers within animals, part of a seedstock herd, or percent of the rate set for commercial the beef cattle category, we propose donor animals. Sows and boars in this breeding rams. We invite your establishing a rate that would be 120 second rate classification would receive comments on the proposed percentage percent of the rate established for beef a rate that would be 300 percent of the premiums for these animals. cows. The higher rate for bred heifers in rate established for grower-finisher pigs. We realize that there may be unique comparison to beef cows would reflect We invite your comments on the situations where the valuation of the value of their breeding potential. We proposed percentage premiums for these animals by the fixed-rate method would are also proposing that the rate for beef animals. be unsuitable. As provided in proposed bulls would be 250 percent of the rate We considered whether a separate § 53.3(a)(2)(iv), an owner of animals established for beef cows. We invite rate classification should be established subject to valuation by the fixed-rate your comments on the proposed for swine breeding animals that are method may submit a written request to percentage premiums for these animals. considered foundation stock or part of a the Administrator asking that the Beef cows or bred replacement heifers grandparent or great-grandparent herd. animals affected by disease and subject that are breeding animals and are While the number of animals that would to destruction be valued by appraisal registered animals, part of a seedstock qualify for this classification would be instead of by fixed-rate method. The herd, or donor animals, would receive a relatively small, such animals could owner would have to include in the rate equal to 250 percent of the rate merit a higher valuation in comparison request the reasons why valuation by established for commercial beef cows. to other seedstock animals. However, the fixed-rate method would be Beef bulls that qualify as breeding we could not determine a general rate unsuitable. In determining whether to
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grant the request, the Administrator appraisers, there may not be a sufficient rate method, or other means provided would take into account whether number of trained personnel in the area for in proposed § 53.3. The decision by providing the time and personnel to to carry out these activities in a timely the Administrator regarding the conduct an appraisal would manner. In such cases, the valuation of animals or materials or the compromise efforts to effectively control Administrator would have to determine amount of other compensation would be and eradicate the disease. The decision whether requiring appraisal would final. by the Administrator regarding the undermine efforts to control and We would remove without owner’s request for appraisal would be eradicate the disease. replacement the information that final. A denial of a request for an We would add a new paragraph, to appears in paragraphs (c) and (d) of appraisal under proposed § 53.3(a)(2)(iv) appear at § 53.3(c), that would cover current § 53.3 on the submission of would not affect the owner’s right to other compensation allowed by the claim forms seeking compensation for request a review of the actual valuation regulations (i.e., costs for cleaning and animals or materials destroyed. This made, as discussed below under disinfection). In proposed § 53.3(c)(1), subject would be covered under the proposed § 53.3(d). we would provide that compensation section on presentation of claims, to We invite your comments on our for cleaning and disinfection costs appear at proposed § 53.7. proposed standards for the would be based on receipts or other Destruction of Animals establishment of rates for breeding documentation maintained by the animals, as just discussed. We also claimant that verify the expenditures Current § 53.4 covers the destruction welcome your suggestions for made for cleaning and disinfection of animals affected by or exposed to alternative approaches for the valuation activities authorized under part 53. We disease, as well as the manner of their of breeding animals. are proposing that compensation be disposition. Paragraph (a) of current Proposed § 53.3(b) covers the based on proof of expenditures. We § 53.4 provides that animals affected by requirements for the valuation of realize, however, that there would be or exposed to disease shall be killed materials to be destroyed because of cases where claimants would wish to promptly after appraisal and disposed of being contaminated by or exposed to a carry out any cleaning and disinfection by burial or burning, unless otherwise disease agent. The regulations currently activities on their own without hiring specifically provided by the do not address the valuation of others to do the work. Our proposal Administrator, at his or her discretion. materials except to require that the does not currently provide a means for Section 53.4, paragraph (a), also materials be appraised by an APHIS compensating such ‘‘sweat equity,’’ but provides that in the case of animals employee and a State representative, or, we invite your comments and depopulated due to infectious salmon alternatively, by an APHIS employee suggestions that would address anemia, salvageable fish may be sold for alone, and that the information on the compensating cleaning and disinfection rendering, processing, or any other appraised value must be reported on work performed directly by the purpose approved by the Administrator. forms furnished by APHIS showing, claimant. If fish retain salvage value, the proceeds when practicable, the number, size, or We are also proposing to add a new gained from the sale of the fish will be quantity, unit price, and total value of paragraph, to appear at § 53.3(d), that subtracted from any indemnity payment each kind of material appraised. would cover a claimant’s right to from APHIS for which the producer is In proposed § 53.3(b), we would request a review. A claimant who eligible under § 53.2(b). clarify that the value of materials disagrees with the valuation in total of We are proposing to make several destroyed because of contamination by all animals or all materials or the changes to current § 53.4(a). First, we or exposure to a disease agent would be amount of other compensation would amend the term ‘‘animals the material’s fair market value based on determined under § 53.3 may submit a affected by or exposed to disease’’ to an appraisal. The appraisal of materials written request for review to the read ‘‘animals affected by disease’’ for would be conducted jointly by an Administrator. We are proposing that purposes of consistency, as discussed APHIS representative and a State the request for review take into account previously. We would use the word representative, or, if the State all animals or materials covered under ‘‘valuation’’ in place of ‘‘appraisal’’ authorities approve, by an APHIS the valuation since we want to consider since the valuation of animals in the representative alone. However, in the the totality of circumstances. case of FMD may not always be based case of FMD only, we are proposing that Particularly in the case of animals, the on appraisal. The word ‘‘destroyed’’ if the Administrator determines that valuation may be based on the entire would be used in place of ‘‘killed’’ to be appraisal would be impracticable, or herd of a particular class of animals. For consistent with similar references in would otherwise compromise efforts to example, in applying a fixed rate to a other sections of the regulations. We effectively control and eradicate the herd of animals, some individual would also clarify that the requirement disease, the Administrator may animals in the herd may be worth more that animals affected by disease be authorize the value of materials to be than the average price paid per animal, destroyed promptly following valuation determined by other means, such as others may be worth less. If a producer would not apply to official vaccinates. through records or other documentation could challenge the per animal payment We would also strike the language that maintained by the claimant indicating of only selected animals, the provides for the disposition of animals the value of the materials destroyed. compensation claim could be more than by means other than burial or burning As in the case of animals, requiring the total value of the herd. Our goal is if ‘‘specifically provided by the the appraisal of contaminated materials to make the producer whole, but not to Administrator, at his or her discretion.’’ prior to their destruction could prove to exceed that. Thus, the claimant would We would instead provide that the be impracticable, and actually have to include in the request the animals would be ‘‘disposed of by compromise our ability to control and reasons, including any supporting burial, burning, or other manner eradicate the occurrence of FMD. documentation, that the total valuation approved by the Administrator as not Contaminated materials subject to of all animals or all materials or the contributing to the spread of the destruction would have to be disposed amount of other compensation should disease.’’ of promptly. Depending on the number be different from the valuation or Paragraph (b) of current § 53.4 of sites that would have to be visited by amount determined by appraisal, fixed- provides that the killing of animals and
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the burial, burning, or other disposition example, in the case of official sections under § 53.5 alone. In making of carcasses shall be supervised by an vaccinates housed in a zoo. these changes, we would refer to APHIS employee who shall prepare and We would also provide in proposed materials that have been ‘‘contaminated transmit to the Administrator a report § 53.4(c) that if official vaccinates are by or exposed to a disease agent’’ identifying the animals and showing allowed to move to a slaughtering or instead of materials that have been their disposition. We would substitute rendering facility in lieu of destruction contaminated by or exposed to disease ‘‘APHIS representative’’ for ‘‘APHIS or disposition by other means, then any for purposes of consistency with similar employee’’ based on our previously- proceeds gained from the sale of the proposed references elsewhere in part discussed proposal of using the term animals to the slaughtering or rendering 53. We would substitute the term ‘‘APHIS representative’’ in place of facility will be subtracted from any ‘‘value’’ for ‘‘appraisal’’ since the ‘‘APHIS employee’’ throughout the indemnity payment from APHIS for valuation of materials may not always regulations. Similarly, we would which the producer is eligible under be based on appraisal, as discussed substitute the word ‘‘destroyed’’ for proposed § 53.2(a)(2). Allowing animals previously in our proposed changes to to move to a slaughtering or rendering ‘‘killed’’ for purposes of consistency, as § 53.3. We would also use ‘‘APHIS facility in lieu of destruction and discussed above. We would also amend representative’’ in place of ‘‘APHIS disposition by other means would apply current § 53.4(b) to provide that the employee’’ for the reasons discussed only to those animals officially destruction and disposition of animals previously. We would also provide that vaccinated for FMD. Our policy for the the disinfection or destruction of could also take place under the control and eradication of disease calls supervision of a State representative. materials could also take place under for all other animals affected by disease the supervision of a ‘‘State This change would allow us greater to be destroyed and disposed of by representative’’ to allow us greater flexibility in deploying personnel burial, burning, other manner approved flexibility in deploying personnel without compromising our ability to by the Administrator. ensure that animal depopulation is The information regarding salvageable without compromising our ability to carried out under qualified supervision. fish being sold for rendering, ensure that the disinfection or We would substitute the word ‘‘must’’ processing, or other purpose, which destruction of materials is carried out in place of ‘‘shall’’ in the phrase ‘‘shall now appears in § 53.4(a), would be under qualified supervision. We would be supervised’’ for stylistic reasons. moved without change to proposed substitute the word ‘‘must’’ in place of Finally, we would make a minor change § 53.4(d). ‘‘shall’’ in the phrase ‘‘shall be in sentence construction by amending supervised’’ for stylistic reasons. We Disinfection and Destruction of the statement ‘‘who shall prepare and would use the word ‘‘report’’ in place of Materials transmit to the Administrator a report ‘‘certificate’’ in describing the document identifying the animals and showing the Current § 53.5 provides for the that the APHIS representative or State disposition thereof’’ to instead state disinfection or destruction of materials representative would submit to the ‘‘who will prepare and transmit to the contaminated by or exposed to disease. Administrator listing all materials Administrator a report identifying the Paragraph (a) of current § 53.5 states that destroyed. We would also strike out the animals destroyed and the manner of such materials shall be disinfected and, last sentence in current § 53.7 that their disposition.’’ if the cost of disinfection exceeds the provides that cleaning and disinfection value of the materials or disinfection expenses shall be shared according to Subject to certain exceptions that may would be impracticable, the materials the agreement reached under § 53.2. As include exotic or rare animals or shall be destroyed after appraisal as explained earlier, this topic would be endangered or threatened species, as provided in § 53.3. Paragraph (b) of covered in proposed § 53.2. discussed below, vaccinated animals current § 53.5 provides that the would be destroyed as part of an FMD As revised, proposed § 53.5 would disinfection or destruction of materials provide that all materials that have been eradication program. However, under § 53.5 shall take place under the nonvaccinated animals affected with contaminated by or exposed to a disease supervision of an APHIS employee who agent would have to be cleaned and FMD would be destroyed first. Thus, it shall prepare and transmit to the may be necessary for vaccinated animals disinfected under the supervision of an Administrator a certificate identifying APHIS representative or a State to be held on a premises for an all materials that are destroyed, showing indeterminate length of time prior to representative. However, if the cost of the disposition thereof. cleaning and disinfection of materials destruction. To clarify the different Current § 53.7 covers the disinfection would exceed the materials’ value or if treatment that may be afforded official of premises, conveyances, and the cleaning and disinfection of vaccinates compared to other animals materials, providing that all premises, materials would be impracticable, the affected by disease, we would provide including barns, corrals, stockyards and materials will be destroyed under the in proposed § 53.4(c) that official pens, and all cars, vessels, aircraft, and vaccinates would be destroyed or other conveyances, and the materials supervision of an APHIS representative otherwise handled in a manner as thereon, shall be cleaned and or State representative, upon directed by the Administrator to prevent disinfected under the supervision of an determination of their value as provided the dissemination of the disease. We APHIS employee whenever necessary in proposed § 53.3. The APHIS would further add that official for the control and eradication of representative or State representative vaccinates not subject to destruction disease. Expenses incurred in would prepare and transmit to the may include, at the discretion of the connection with such cleaning and Administrator a report identifying all Administrator, exotic animals, rare disinfection shall be shared according to materials destroyed and the manner of animals, or animals belonging to an the agreement reached with the State. their disposition. endangered or threatened species. This The information contained in current As part of these proposed changes to policy of protecting from destruction §§ 53.5 and 53.7 overlap in certain combine §§ 53.5 and 53.7, current § 53.7 certain exotic or rare animals, or respects. To eliminate this redundancy, would be removed in its entirety and animals belonging to an endangered or we are proposing to include the current § 53.8 would be redesignated as threatened species might arise, for information that appears in both these § 53.7.
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Cleaning and Disinfection of Animals susceptible to the disease for which a claims for compensation under this part Current § 53.6 provides that animals quarantine has been established but that must each be presented by the claimant of species not susceptible to the disease are capable of transmitting the disease to an APHIS representative on forms for which a quarantine has been agent as a mechanical vector if exposed approved by APHIS. The basis for established, but which have been to it. By ‘‘mechanical vector,’’ we mean seeking compensation in part 53 would exposed to the disease, shall be an animal or inanimate object that be covered in proposed § 53.2. We disinfected when necessary by such carries a microorganism with no would add that claims for animals or methods as the Administrator shall replication occurring. materials destroyed must be presented In addition to providing prescribe from time to time. We would by the owner or the owner’s designated compensation for costs of cleaning and amend § 53.6 to instead provide that representative. We would also add that disinfection of nonsusceptible animals the claimant shall provide any available such animals must be cleaned and in the event of FMD, we are also supporting documents that will assist disinfected, as directed by, and under considering whether the Administrator the Administrator, or that are requested the supervision of, an APHIS should be authorized to provide by the Administrator, in verifying the representative or a State representative. compensation for the destruction of quantity and value of animals or We would insert a reference to the nonsusceptible animals in the event the materials destroyed and the costs of APHIS or State representative in place costs of cleaning and disinfection would their disposition, the costs of cleaning of the Administrator since the oversight exceed the animals’ value, or, and disinfection, and any other costs of this activity would be performed by alternatively, if cleaning and incurred under this part for which an APHIS or State representative. We disinfection of the animals would be compensation is sought. Examples of would also make a change in the section impracticable. This situation could arise supporting documentation could heading and text by referring to this if both the nonsusceptible animals and include production records, purchase activity as ‘‘cleaning and disinfection’’ the structure they are housed in have to and sales records, breeding records, instead of ‘‘disinfection’’ to be be cleaned and disinfected as a result of registration papers, and receipts. consistent with other such references in their proximity to infected animals. In We are also proposing to move the the regulations. the case of certain nonsusceptible information on mortgages against The regulations currently do not animals such as poultry, it may not be animals or materials that is currently provide for the compensation of costs economically feasible to adequately covered under § 53.9 to proposed relating to the cleaning and disinfection clean and disinfect the poultry given § 53.7(b). Current § 53.9 provides that of nonsusceptible animals as is done for their market value, or it may be any claim for indemnity for animals or materials that are contaminated by or otherwise impracticable to clean and materials destroyed pursuant to the exposed to a disease agent. However, we disinfect the animals. Animals subject regulations shall be presented by the are seriously considering whether these to destruction under such circumstances owner of the animals or materials on costs should be eligible for would be valued, for purposes of forms furnished by APHIS. The owner compensation in the case of FMD to indemnification, in accordance with shall indicate on the forms whether or further ensure the willingness of proposed § 53.3 and destroyed and not the applicable animals or materials affected parties to take part in an FMD disposed of in accordance with are subject to a mortgage. If the animals eradication campaign. Should paying proposed § 53.4. We expect that this or materials are subject to a mortgage, for this activity be a responsibility of the situation would arise only in limited then the owner and each person holding producer or of the Federal Government situations. Under most circumstances, a mortgage on the applicable animals or through the payment of compensation? animal confinement during the disease materials shall sign the forms to indicate Typically, the first mitigation strategy occurrence, or cleaning and their consent to the payment of any involving nonsusceptible animals is to disinfection, or some combination of indemnity to the person specified on the restrict their movement from the these measures, should obviate any form. affected area, farm, or other premises. need to destroy nonsusceptible animals We would make certain changes to However, another mitigation measure is exposed to FMD. However, we still seek the provision on mortgages that would to clean and disinfect such animals. your comments on whether the appear in proposed § 53.7(b). We would This may simply entail applying a regulations should provide the substitute the phrase ‘‘on forms bleach or similar solution to the hooves Administrator with the authority to approved by APHIS’’ in place of ‘‘on or paws of the animals. We believe the compensate the owners of forms furnished by APHIS’’ to allow for cleaning and disinfection of nonsusceptible animals under this the possibility that someone other than nonsusceptible animals, when limited situation in the case of FMD. APHIS may distribute the forms. We necessary, will be vital in the case of would also amend the second sentence FMD, since nonsusceptible animals Presentation of Claims which begins, ‘‘If the owner states there could spread FMD even though they Current § 53.8 provides that claims for is a mortgage * * *’’ to instead read ‘‘If themselves would not become infected. compensation for the value of animals, there is a mortgage * * *’’ to clarify that Therefore, we seek your comments on the cost of burial, burning or other the applicability of this provision would whether the regulations should disposition of animals, the value of be triggered by the existence of a authorize compensation for costs material destroyed, and the expenses of mortgage, regardless of whether the relating to the cleaning and disinfection destruction, shall each be presented, owner asserts its existence. We would of nonsusceptible animals to further through the inspector in charge, to make several other modifications in ensure that all means of spreading the APHIS on separate vouchers. sentence construction and eliminate the virus are eliminated. We also invite With the proposed removal of current use of the words ‘‘thereby’’ and your comments on the types of costs § 53.7, current § 53.8 covering ‘‘thereon’’ to make the provision easier and the amount of expenditures that presentation of claims would become to understand. We are also proposing to might be incurred in the cleaning and § 53.7. We are proposing to revise this remove, for reasons of redundancy, the disinfection of nonsusceptible animals. provision without changing its word ‘‘allowed’’ that appears in the We would consider nonsusceptible substantive meaning by simply phrase ‘‘consenting to the payment of animals to include animals that are not providing in new paragraph (a) that any indemnity allowed,’’ as well as
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change the phrase ‘‘pursuant to the materials have been ‘‘valued’’ as ‘‘violation of any related cooperative requirements contained in this part’’ to prescribed in the regulations. Under agreement,’’ and just rely on the read ‘‘pursuant to this part.’’ As proposed § 53.8(c), we would also not violation of the applicable law or amended, proposed § 53(b) would include the condition that owners must regulation as the basis for not allowing provide that when animals or materials execute a written agreement to the a claim. have been destroyed pursuant to part appraisals. We do not believe such a A key element in the successful 53, the owner of the animals or provision is necessary since we are eradication of a disease that spreads as materials would have to certify on the would provide claimants the option of quickly as FMD is the earliest possible claim for compensation whether or not requesting a review by the detection and reporting of potentially the applicable animals or materials are Administrator if they believe the diseased animals. A primary purpose for subject to any mortgage. If there is a valuation of animals or materials is this rulemaking is to remove possible mortgage, the owner and each person inadequate. (See previous discussion sources of delay so that any outbreak of holding a mortgage on the animals or under ‘‘Payments for Animals and FMD can be eradicated quickly. Prompt materials would have to sign forms Materials, Other Compensation, Request reporting could save the economy approved by APHIS indicating they for Review.’’) billions of dollars, as well as prevent consent to the payment of any In current § 53.10(d), we provide that significant disruptions to the economy. indemnity to the person specified on the the Department will not allow claims Prompt detection and reporting require forms. arising out of the destruction of animals knowledge and vigilance on the part of In covering mortgages against animals or materials which have been moved or producers, industry, and State, local, or materials in proposed § 53.7(b), we handled by ‘‘the owner * * * or its and Federal governments, working would remove current § 53.9 in its officer, employee, or agent acting within cooperatively. Although the subject of entirety from the regulations. the scope of his or its office, reporting of animal diseases is not employment or agency, in violation of a specifically addressed in this proposal, Claims Not Allowed law or regulation administered by the we invite public comment on ways to Current § 53.10 lists certain situations Secretary for the prevention of the encourage timely reporting of where claims for compensation will not introduction into or the dissemination potentially diseased animals, including, be allowed. With the removal of current within the United States of any but not limited to, adjustments to §§ 53.7 and 53.9, current § 53.10 would communicable disease of livestock or compensation. become § 53.8. We would also make poultry for which the animal or material We would make certain other changes certain other changes to this section. was destroyed, or in violation of a law to proposed § 53.8(d) to make it easier Paragraph (a) of current § 53.10 or regulation for the enforcement of to understand without changing its provides that the Department will not which the Secretary enters or has substantive meaning. We would remove allow claims arising under part 53 if the entered into a cooperative agreement for the reference to an ‘‘officer, employee, payee has not complied ‘‘with all the control and eradication of such or agent acting within the scope of his quarantine requirements.’’ Under disease.’’ or her office, employment, or agency’’ proposed § 53.8(a), we would elaborate Under proposed § 53.8(d), we would and instead use the phrase ‘‘the owner’s on this requirement by providing that provide that the Department will not representative acting on behalf of the the payee must comply ‘‘with all allow claims arising out of the owner.’’ We would also remove the Federal quarantine requirements or destruction of animals or materials in word ‘‘thereof’’ and the phrase ‘‘within State quarantine requirements violation of any ‘‘Federal law or the United States,’’ as well as make consistent with Federal law or regulation, or any State law or several other minor changes in sentence regulations in effect for the control and regulation consistent with a Federal law construction and word usage to make eradication of disease.’’ or regulation,’’ that is administered to the provision easier to understand. In current § 53.10(b), we provide that prevent the introduction or Miscellaneous expenses for the care and feeding of dissemination of any ‘‘contagious or animals held for destruction will not be infectious animal disease or any The regulations, immediately below paid by the Department unless the communicable livestock or poultry the table of contents and the authority payment of such expenses is specifically disease’’ for which the animal or citation, provide a cross reference that authorized or approved by the material was destroyed. A cooperative states, ‘‘For non-applicability of part 53 Administrator. In proposed § 53.8(b), we program for the control and eradication with respect to certain claims for would make a stylistic change by of disease may be carried out largely indemnity, see § 51.10 of this chapter.’’ substituting the words ‘‘costs’’ and under State laws and regulations. By not Section 51.10 appears in the regulations ‘‘cost’’ in place of ‘‘expenses’’ and allowing claims for violations of either in 9 CFR part 51 for animals destroyed ‘‘expense.’’ Federal laws or regulations, or State because of brucellosis. Section 51.10 Paragraph (c) of current § 53.10 states laws or regulations that are consistent provides that no claim for indemnity for that we will not allow claims arising out with Federal laws or regulations, we animals destroyed under 9 CFR part 51 of the destruction of animals or would encourage public compliance shall be paid under the regulations in materials unless the animals or and thereby enhance the effectiveness of part 53. The regulations covering materials have been ‘‘appraised’’ as the cooperative program to control and animals destroyed because of prescribed in the regulations and the eradicate disease. We would amend the tuberculosis in 9 CFR part 50 also owners have executed a written reference to ‘‘communicable livestock or contain a provision at § 50.15 that agreement to the appraisals. Since we poultry disease’’ to state ‘‘any provides that no claim for indemnity for are proposing that animals or materials contagious or infectious animal disease cattle or bison destroyed because of could be valued by means other than or any communicable livestock or tuberculosis shall be paid pursuant to appraisal in certain circumstances, we poultry disease’’ to be consistent with the regulations in part 53. We are would instead provide that the our earlier proposed change to the proposing to amend the cross reference Department will not allow claims definition of disease. We would also that appears below the table of contents arising out of the destruction of animals delete the specific reference to not and authority citation in part 53 by or materials unless the animals or allowing claims on the basis of inserting a reference to § 50.15. We
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would also make a technical correction Summary of the Cost-Benefit Analysis A rapid, coordinated response by the to the authority citation immediately Our analysis examines the potential public and private sectors in the early below the table of contents by adding a economic effects of proposed changes stages of an FMD occurrence is reference to 21 U.S.C. 134a–134h. affecting indemnification and other imperative, if devastating losses are to compensation paid for losses due to the be prevented. The purpose of this Executive Order 12866 and Regulatory proposed rule is to remove possible Flexibility Act occurrence of FMD in the United States. Recent occurrences of FMD in a number sources of delay in achieving FMD This proposed rule has been reviewed of formerly FMD-free regions have eradication. Under the existing under Executive Order 12866. The rule demonstrated both the speed with regulations, delays may occur because has been determined to be significant which an FMD outbreak can spread and of certain producers’ perceptions, as well as eradication program for the purposes of Executive Order the magnitude of its consequences. 12866 and, therefore, has been reviewed An FMD occurrence in the United requirements. In the first instance, by the Office of Management and States could be devastating, given the delays can derive from livestock Budget. Nation’s extensive livestock holdings. owners’ uncertainty of being fully Besides the direct economic effects on compensated for the fair market value of We have prepared an economic destroyed animals, products, and ruminant and swine producers, analysis for this proposed rule. It materials, including livestock consequences of the disease would provides a cost-benefit analysis as vaccinated as part of an eradication ripple through the economy, causing required by Executive Order 12866, as program (official vaccinates). Owners of indirect costs in sectors beyond well as an initial regulatory flexibility affected herds may also be uncertain agriculture. International movement of analysis, which considers the potential that they will receive full compensation many commodities would be disrupted economic effects of this proposed rule for cleaning and disinfection costs. In by restrictions imposed by trading on small entities, as required by the the second instance, delays may be partners. Costs of an FMD occurrence to Regulatory Flexibility Act. The caused by having to rely on appraisal for the Nation’s economy could reach to economic analysis is summarized the valuation of livestock when an below. Copies of the full analysis are billions of dollars, if not quickly insufficient number of appraisers or available by contacting the person listed controlled. The Department is engaged other constraints would prevent timely under FOR FURTHER INFORMATION in a number of planning and operational destruction of infected and exposed CONTACT. Please refer to Docket No. activities expected to reduce the animals. 01–069–1 when requesting copies. The likelihood of an FMD occurrence and, if The proposed rule sets forth full analysis is also available on the FMD is introduced, to prevent impacts regulatory changes to address these Internet at http://www.aphis.usda.gov/ from reaching catastrophic levels. possible sources of delay in the event of ppd/rad/fmdanalysis.pdf. The economic Nonetheless, the risk of an FMD an outbreak of FMD. First, the analysis is also available for review in introduction into the United States is Department would pay 100 percent of our reading room (information on the ever present, given today’s highly the costs for the purchase, destruction, location and hours of the reading room mobile environment and global and disposition of animals affected by is listed under the heading ADDRESSES at agricultural economy. FMD, including official vaccinates. The the beginning of this document). The regulations currently provide that Department would also pay 100 percent upon agreement of the State, the of the costs for cleaning and disinfection We do not currently have all of the Administrator is authorized to pay 50 data necessary for a comprehensive of materials that are contaminated by or percent (and in the case of infectious exposed to FMD. If the costs of cleaning analysis of the effects of this proposed salmon anemia up to 60 percent, and in rule on small entities. Therefore, we are and disinfection exceed the value of the the case of exotic Newcastle disease or materials, or cleaning and disinfection inviting comments on potential effects. highly avian influenza up to 100 In particular, we are interested in would be impracticable, then the percent) of the expenses of the Department would pay 100 percent of determining the numbers and kinds of purchase, destruction, and disposition small entities that may incur benefits or the purchase, destruction, and of animals and materials required to be disposition of such materials. These costs from the implementation of this destroyed because of being proposed rule. changes are intended to allay any contaminated by or exposed to disease. concerns on the part of affected entities In accordance with 21 U.S.C. 111, The Administrator is also authorized to that States would be unable to fund 114, 114a, and 134a–134h, the Secretary pay up to 100 percent of the purchase, their shares of compensation payments. of Agriculture has the authority to destruction, and disposition of animals Second, livestock valuation based on promulgate regulations and take exposed to such disease prior to or a set of fixed rates would be made measures to prevent the introduction during interstate movement that are not available as an alternative to appraisal. into the United States and the interstate eligible to receive indemnity from any Fixed compensation rates would dissemination within the United States State. The Secretary of Agriculture may potentially enable FMD-affected herds of any communicable diseases of authorize other arrangements in the case to be compensated more quickly with livestock and poultry, as well as any of an extraordinary emergency. less risk of disease spread. contagious or infectious diseases of Under the current regulations, A third change would provide that in animals that in the opinion of the animals and materials subject to the case of FMD only, if an appraisal of Secretary constitute an emergency and destruction are valued based on an materials to be destroyed is found to be threaten the livestock or poultry of the appraisal. The regulations currently do impracticable, or would otherwise United States, and to pay claims not expressly provide for compensation compromise efforts to effectively control growing out of the destruction of for official vaccinates. In addition to and eradicate the disease, the animals and materials. Animal health compensation for destroyed property, Department may authorize the regulations promulgated by the the Administrator is authorized to material’s fair market value to be Department under this authority include indemnify for cleaning and disinfection determined by other means, such as those regarding payment of claims in 9 costs in accordance with the cost through records or other documentation CFR part 53. sharing agreement with the State. maintained by the claimant indicating
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the value of the materials destroyed. to possible sources of delay. characteristics of the outbreak and This option could eliminate another Assumption of States’ 50 percent share mitigation strategy. Two hypothetical potential source of delay in determining of compensation payments under the examples of FMD occurrences and the value of materials subject to proposed rule would reduce livestock resulting livestock compensation are destruction. owners’ uncertainty about being fully presented, to demonstrate the main The Department would respond to an compensated for losses. Less compensation funding impacts of the FMD occurrence by entering into a uncertainty is expected to lead to proposed rule for the Department and cooperative control and eradication improved levels of participation and affected States, in comparison to program with States or others, or cooperation in the eradication effort. cooperative conditions. (A comparison alternatively, in the case of an Provision of fixed rates as an alternative of compensation funding with the extraordinary emergency, take action to appraisal for valuing compensated proposed rule to funding under upon determination that the State is not livestock will also remove possible extraordinary emergency conditions is taking adequate measures in regard to eradication delays. Other potential pointless, since the Department would the control and eradication of disease. benefits of using fixed rates will be a pay 100 percent of compensation in In the full analysis, we use a cooperative reduced risk of mechanical transmission both instances.) program under the auspices of the of FMD, and lower operational costs. The first example assumes a 7 percent current regulations and an extraordinary For States, the budgetary impact of loss of U.S. livestock, which was the emergency determination as baselines the proposed rule in the case of an percentage of the United Kingdom’s for measuring the effects of the extraordinary emergency will be just the livestock destroyed in 2001 because of proposed rule, if implemented. opposite. Department funding of all FMD. After adjusting for differences in The regulations currently authorize compensation payments will provide the relative percentages of cattle, swine, the Department to pay 50 percent of the significant financial savings to States in and sheep in the United States cost of purchase, destruction, and the event of an FMD occurrence. compared to those in the United disposition of animals and materials However, States may still face numerous Kingdom, and applying a set of fixed required to be destroyed under a direct and indirect FMD costs and some rates calculated using procedures set cooperative program for most diseases, share of eradication program costs in the forth in the analysis, payments for including FMD. Affected States would event of a serious FMD outbreak. destroyed animals were found to total be expected to fund the remaining 50 For affected industries and livestock $7.3 billion. Related analyses, given percent of compensation. Compensation owners, the main impact of the assumed numbers of FMD-affected for costs of cleaning and disinfection of proposed rule as applied in a premises, yield compensation payments products or materials that have been cooperative program will be increased for cleaning and disinfection of contaminated by or exposed to FMD confidence that affected parties will premises that total $279 million. would be shared by the Department and receive full fair market value when Under this first example, and based State, in accordance with the agreement compensated for destroyed animals and on the compensation provisions in the reached by the two parties. The materials. This reassurance will current regulations, we estimate the regulations currently do not expressly encourage the private sector’s Department and affected States would provide for owners of official vaccinates participation and cooperation in the each bear compensation payments of to be compensated for their destruction. eradication program. In the end, fewer about $3.8 billion in a cooperative In the case of an FMD emergency, a rule livestock operations may be directly program. Under the proposed rule, the would probably be quickly promulgated affected because the higher level of Department’s compensation payments that would allow compensation for cooperation will lessen the possibility of would increase to about $7.6 billion. official vaccinates. eradication program delays. In addition, The impact would be for Department In the case of an extraordinary the more quickly eradication is compensation payments to increase by emergency, the Department would be accomplished, the smaller will be $3.8 billion (the States’ 50 percent share authorized to seize, quarantine, and industry losses due to quarantines and of compensation for destroyed animals dispose of any affected or exposed international trade restrictions. and cleaning and disinfection costs). animals, carcasses, products, or articles. Affected entities will still bear Most likely, total Department Under an extraordinary emergency, the uncompensated costs, from lost income compensation payments would be some Department is statutorily required to because of downtime, to restocking lesser amount if eradication delays that pay compensation for any animal or difficulties and market restrictions. would otherwise occur (because of material destroyed based on its fair Trade losses and other industry-wide producers’ uncertainties about State market value, and such compensation impacts will also still occur. funding or reliance solely on appraisal cannot exceed the difference between In comparing the proposed rule for the valuation of livestock and any compensation received from a State versus the current regulations in the materials) were avoided. While affected or other source and such fair market case of an extraordinary emergency, the States would not be obliged to pay value. The Department’s compensation total amount of compensation paid by compensation, they would still bear responsibilities and costs and the Department would be much the other costs of the disease and its eradication program costs in general are same in both cases. eradication. likely to be larger in the case of an While affected industries and The second hypothetical example extraordinary emergency than they livestock owners would be fully assumes a smaller FMD occurrence, and would be under a cooperative program, compensated by the Department for shows the same pattern of compensation and States’ responsibilities and costs destroyed livestock and materials both payments with and without the will be correspondingly smaller. in an extraordinary emergency and proposed rule. Without the rule, the Comparing the proposed rule to the under the proposed rule, they would Department and affected States would existing regulations in the context of a still face uncompensated costs such as each pay about $216 million, that is, cooperative program, the major impacts lost income and fixed costs. one-half of compensation for destroyed for the Department would be a Compensation costs incurred by the animals and cleaning and disinfection significantly larger budgetary obligation Department in the event of an FMD costs. Under the proposed rule, the and an eradication program less subject occurrence would depend on the Department’s compensation in a
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cooperative program with States and appraisal is impracticable or would our analysis focuses on an occurrence of other cooperators would increase to otherwise compromise eradication FMD. Therefore, entities directly $432 million, that is, 100 percent of efforts. The use of fixed rates should affected by the proposed rule in the case compensation. The overall impact result in program savings, since their of an FMD occurrence would be would be for the Department’s application would require fewer ruminant and swine operations whose compensation burden to increase by resources than appraisal. Fixed rates herds or flocks are affected by the $216 million (the States’ 50 percent should also lower risks of mechanical disease, as well as other businesses that share of compensation for destroyed disease transmission, since there would sell or deal with susceptible animal animals and cleaning and disinfection be less human contact with infected products and byproducts that would costs). Again, these costs may be animals. have to be destroyed as part of an overstated, since there could be savings In sum, the changes in this proposed eradication program. Our analysis through the avoidance of eradication rule would strengthen programs for the focuses on livestock producers, while delays. Also, States would not pay control and eradication of FMD by recognizing that similar economic compensation under the proposed rule, broadening the Departmental’s options. effects could be expected for other types but would face other costs relating to The changes would be particularly of establishments eligible for the control and eradication of disease. important in lessening the chances that compensation. The two examples illustrate the FMD’s eradication will be delayed. The Small Business Administration proposed rule’s shift in compensation As alternatives to the proposed rule, (SBA) has established guidelines for payments from affected States to the the current regulations as applied to determining which types of firms are to Department in the case of a cooperative cooperative programs and extraordinary be considered small under the program. However, as noted above, emergencies have shortcomings. The Regulatory Flexibility Act. An States and the private sector would face current regulations under a cooperative establishment engaged in dairy animal other costs including a portion of FMD program contain possible sources of and milk production, cattle ranching eradication program costs, income eradication program delay. and farming, hog and pig farming, sheep Under an extraordinary emergency, losses and fixed costs for livestock and farming, or goat farming is considered USDA compensation for animals and related industries, and economy-wide small if it has annual sales of less than materials destroyed would be the same indirect impacts. Because these other $750,000. In 1997, at least 92 percent under the current regulations and costs remain uncompensated under the (79,155 of 86,022) of dairy farms, 99 proposed rule. However, under the proposed rule, States and livestock percent (651,542 of 656,181) of cattle owners will still have strong incentives current regulations appraisal would be the only method of valuation, and costs farms, 87 percent (40,185 of 46,353) of to remain vigilant for the first signs of hog and pig farms, and 99 percent disease, and to cooperate fully with the to USDA of conducting an FMD eradication campaign would be higher (29,790 of 29,938) of sheep and goat Department if there is an FMD farms were considered small. occurrence. (and costs to States correspondingly FMD eradication and compensation lower). Policy changes would need to be Cattle feedlots are considered small if costs will depend on the scale of the planned and implemented immediately. their annual sales are $1.5 million or occurrence of the disease, which in turn less. Over 97 percent of feedlots (95,000 Summary of Initial Regulatory will depend on how quickly and of 97,091) have capacities of less than Flexibility Analysis effectively the Department, States, and 1,000 head, and average annual sales of private entities can respond. States and Agencies are required under the about 420 head. Assuming each head the private sector will be positively Regulatory Flexibility Act (5 U.S.C. 601 sold for $1,000, these less-than-1,000 affected by eradication efforts less prone et seq.) to evaluate the potential head capacity feedlots would generate, to delay: Fewer livestock and wildlife economic effects of proposed rules on on average, $420,000 in sales. Clearly, populations will be directly affected, small entities. We do not have enough most feedlots and other livestock producers and exporters will be able to information to fully evaluate the operations are small entities. reestablish their operations sooner, and potential effect of this proposed rule on Benefits for small entities will be the business losses for input suppliers, small entities. As such, we are inviting same as those described in the cost transporters, and other indirectly comments addressing this issue. In benefit analysis, which are that small affected businesses will be smaller. particular, we are interested in entities essentially will have greater Conversely, a protracted eradication determining the number and kinds of confidence that they will receive full effort will mean heightened losses and small entities that may incur benefits or fair market value when compensated for larger eradication costs. costs from implementation of this destroyed animals and materials. This The benefits of this proposed rule are proposed rule, and if there are any reassurance will encourage small several. Payment of 100 percent special issues relating to the business entities to participate fully in FMD’s compensation for animals and materials practices of these small entities that eradication. In the end, fewer small destroyed in the event of FMD, as well would make them particularly different entities will be directly affected because as related cleaning and disinfection from larger firms in their ability to the higher levels of cooperation will costs, should eliminate uncertainty on comply with this proposed rule. reduce the delays in eradicating FMD. the part of livestock owners about However, we have made some initial Small entities that own livestock States’ ability to fund their share of conclusions. selected for vaccination as part of the FMD compensation. It should encourage The changes in this proposed rule eradication process will also be more fully committed participation by would directly affect ruminant or swine willing to cooperate, with the affected parties. Otherwise, such operations whose herds or flocks are knowledge that they will be uncertainty could cause delays in an affected by FMD. Other businesses that compensated for the fair market value of FMD eradication campaign. sell or deal with animal products and their animals. They will be encouraged The option of using fixed rates in byproducts could also be affected by the to feed and care for the official place of appraisal in valuing livestock proposed rule if their commodities were vaccinates humanely, confident that should also remove possible eradication destroyed as part of an eradication these expenses will be compensated as delays in those situations where program. For purposes of illustration, well.
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Full compensation by the Department refer to Docket No. 01–069–1. Please is estimated to average 1.0 hour per for cleaning and disinfection of affected send a copy of your comments to: (1) response. products and materials, will likewise Docket No. 01–069–1, Regulatory Respondents: Owners of animals and enhance small entities’ willingness to Analysis and Development, PPD, materials destroyed, other claimants take part in an FMD eradication APHIS, Station 3C71, 4700 River Road incurring costs under this part for which campaign. Unit 118, Riverdale, MD 20737–1238, compensation is sought, as well as Even with the changes in the and (2) Clearance Officer, OCIO, USDA, program support personnel including proposed rule are implemented, affected room 404–W, 14th Street and accredited veterinarians, State animal small entities will still bear Independence Avenue SW., health employees, and local authorities uncompensated costs, from lost income Washington, DC 20250. A comment to who would be providing assistance in because of downtime, to high restocking OMB is best assured of having its full the event of a national animal disease prices and market restrictions. If FMD effect if OMB receives it within 30 days emergency. does occur, small entities can be of publication of this proposed rule. Estimated annual number of expected to benefit directly and Providing affected herd owners and respondents: 1. indirectly from the of elimination of other claimants with appropriate Estimated annual number of possible sources of eradication delay. compensation would entail the use of responses per respondent: 1. In sum, the vast majority of livestock VS Form 1–23, also known as an Estimated annual number of operations are small entities. While the Appraisal and & Indemnity Claim Form. responses: 1. course an occurrence of FMD would Affected herd owners and other Estimated total annual burden on take cannot be predicted, it is claimants would also be expected to respondents: 1 hour. reasonable to expect that small entities provide any supporting documentation Copies of this information collection would be among the beneficiaries of the that will assist the Administrator, or can be obtained from Mrs. Celeste proposed rule directly as compensated that is requested by the Administrator, Sickles, APHIS’ Information Collection parties and indirectly through rule to verify the quantity and value of Coordinator, at (301) 734–7477. changes that would lessen the chances animals or materials destroyed and the Appendix—Establishing Fixed Rates that FMD’s eradication will be delayed. costs of their disposition, and the costs To illustrate how we would establish This proposed rule would entail of cleaning and disinfection. We are information collection requirements. rates for certain animal species under a therefore asking OMB to approve, for 3 fixed-rate method, as discussed These requirements are described in this years, our use of this information document under the heading previously in our proposed changes to collection. § 53.3, we have provided an example ‘‘Paperwork Reduction Act.’’ We are soliciting comments from the based on a hypothetical outbreak of public (as well as affected agencies) Executive Order 12372 FMD in early April of 2001. In this concerning our proposed information example, we would establish fixed rates This program/activity is listed in the collection and recordkeeping for cattle (beef and dairy animals), Catalog of Federal Domestic Assistance requirements. These comments will swine, and sheep. This group of animals under No. 10.025 and is subject to help us: would represent the vast majority of Executive Order 12372, which requires (1) Evaluate whether the proposed intergovernmental consultation with animals that would be affected by FMD. information collection is necessary for Representative ‘‘slide factors’’ for State and local officials. (See 7 CFR part the proper performance of our agency’s 3015, subpart V.) calculating the price-weight adjustment functions, including whether the for different animal categories Executive Order 12988 information will have practical utility; throughout this example were based on (2) Evaluate the accuracy of our This proposed rule has been reviewed information provided by the LMIC. estimate of the burden of the proposed under Executive Order 12988, Civil The valuation of breeding animals, information collection, including the Justice Reform. If this proposed rule is including the assignment of certain validity of the methodology and adopted: (1) All State and local laws and premiums, is based on our best assumptions used; regulations that are in conflict with this estimates from available data and our (3) Enhance the quality, utility, and rule will be preempted; (2) no observations of the livestock market. We clarity of the information to be retroactive effect will be given to this realize that particularly in the case of collected; and breeding animals, there is a greater rule; and (3) administrative proceedings (4) Minimize the burden of the potential for variations in value within will not be required before parties may information collection on those who are the same category or classification of file suit in court challenging this rule. to respond (such as through the use of animals in comparison to market appropriate automated, electronic, Paperwork Reduction Act animals. However, as discussed mechanical, or other technological This proposed rule would require the previously, owners would have the right collection techniques or other forms of submission of claims for compensation to request an appraisal of their animals information technology; e.g., permitting in the event of a future occurrence of if they believed the fixed-rate method electronic submission of responses). FMD. In accordance with section would be unsuitable in their particular 3507(d) of the Paperwork Reduction Act Note: Our estimate below shows a minimal situation. In addition, claimants who of 1995 (44 U.S.C. 3501 et seq.), the burden of 1 hour total because we believe an disagree with the valuation of their FMD outbreak is unlikely. Therefore, we information collection or recordkeeping currently are not collecting information and animals under the fixed-rate method requirements included in this proposed do not plan to collect information unless an would have the opportunity to submit a rule have been submitted for approval to outbreak does occur. In the event of an FMD written request for review to the the Office of Management and Budget outbreak, we will revise the estimated Administrator, explaining why the (OMB). Please send written comments number of respondents and estimated burden valuation of their animals should be to the Office of Information and accordingly at that time based on the number different than the value determined by Regulatory Affairs, OMB, Attention: of expected respondents. using fixed rates. Desk Officer for APHIS, Washington, DC Estimate of burden: Public reporting In terms of organization, we first 20503. Please state that your comments burden for this collection of information provide a summary of the fixed rates
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that would be paid in this example provide a more expanded discussion of and sheep are as follows. Estimated based on a hypothetical outbreak of how these rates would be determined. weights used to calculate the payment FMD in early April of 2001. We then The summary of rates that would be per head are noted in parenthesis where paid for beef and dairy cattle, swine, applicable.
Payment per head
Market animals: Beef Cattle: Preweaned calves (500 lb) ...... $496.25 Non-feedlot, but weaned (stocker) animals (650 lb) ...... 601.51 Feedlot animals (1,100 lb) ...... 814.11 Dairy Cattle: Commercial dairy cows (female dairy cows that are\have been in milk) ...... 1,320.00 Non-bred heifer replacements and sexually immature bulls ...... 924.00 Bred heifer replacements ...... 1,584.00 Swine: Grower-finisher pigs (200 lb) ...... 98.04 Nursery pigs ...... 51.70 Preweaned piglets ...... 32.72 Sheep: Slaughter lambs and wethers raised for wool production (130 lb) ...... 99.76 Preweaned lambs (70 lb) ...... 57.48 Weaned feeder lambs (85 lb) ...... 69.13 Breeding animals: Beef Cattle: Beef cows (commercial herds) (1,000 lb) ...... 740.10 Bred replacement heifers (commercial herds) ...... 888.12 Beef bulls (commercial herds) ...... 1,850.25 Registered animals, animals in a seedstock herd, and donor animals: Cows and bred replacement heifers ...... 1,850.25 Bulls ...... 2,220.30 Dairy Cattle: Dairy bulls ...... 3,300.00 Registered animals, animals in a seedstock herd, and donor animals: Cows and bred replacement heifers ...... 3,300.00 Dairy bulls ...... 3,960.00 Swine: Sows and boars (commercial herds) ...... 196.08 Registered animals, animals in a seedstock herd, and donor animals ...... 294.12 Sheep: Commercial ewes (160 lb) ...... 122.78 Commercial rams (200 lb) ...... 153.48 Registered animals, animals in a seedstock flock, and donor animals: Ewes ...... 245.56 Rams ...... 306.96
A more expanded discussion of how the planned weaning month instead of October, the average futures price was these rates were determined for each of the month of the FMD outbreak since $88.25 per cwt. It is important to note the animal categories follows: the estimated weight would be based on that per/cwt prices are generally higher the average weaning weight for these Market Animals for smaller animals than for larger animals. animals. We then adjusted the average Beef Cattle We determined that the estimated futures price upwards based on a price- Preweaned Calves weight for preweaned calves was 500 lb, weight adjustment of $11 per cwt. We which is the average weaning weight Estimated weight: 500 lb. calculated the $11 per-cwt adjustment Average futures price (adjusted): according to data from NAHMS. Since by selecting a slide factor of $4 per cwt 99.25 per cwt. the estimated weight for preweaned and multiplying it by 275 lb. So the Compensation rate: $496.25 per head. calves was less than the specified average futures price for determining We determined the compensation rate weight range of the feeder cattle futures the compensation rate for preweaned for preweaned calves by taking the contract (700–849 lb), we adjusted the calves was adjusted upward to $99.25 simple average of the most recently average futures price upwards. We per cwt ($88.25/cwt + $11/cwt). We available daily futures prices over a calculated the price-weight adjustment then determined the compensation rate by taking the slide factor determined by 3-month period immediately prior to the of $496.25 per head by multiplying the LMIC (in this case $4/cwt), and date of the disease outbreak, and adjusted average futures price of $99.25 multiplying this factor by the difference multiplying it by the estimated weight. per cwt by the estimated weight of 500 between the futures contract weight and For preweaned calves, we looked to the lb ($99.25/cwt × 5.0 cwt = $496.25 per feeder cattle futures contract traded on the estimated weight (775 lb ¥ 500 lb head). the Chicago Mercantile Exchange, using = 275 lb). the contract month that corresponded to Assuming an early April 2001 disease the month of planned weaning. We used outbreak and a weaning month of
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Non-Feedlot, but Weaned (Stocker) Mercantile Exchange, using the contract came from the most recently reported Animals month that corresponded to the month quarterly price per head for commercial Estimated weight: 650 lb. of the FMD outbreak. dairy cows from NASS. The estimated weight for feedlot beef Average futures price (adjusted): Non-Bred Heifer Replacements and cattle was set at 1,100 lb, based on the $92.54 per cwt. Sexually Immature Bulls Compensation rate: $601.51 per head. following assumptions. The average Compensation rate: $924 per head. We determined the compensation rate slaughter weight of steers and heifers in The rate for non-bred heifer for stocker animals by taking the simple 1999 and 2000 was 1,262 lb according replacements and sexually immature average of the most recently available to NASS statistics. With an average bulls equals 70 percent of the rate daily futures prices over a 3-month placement weight in 2000 of 700 lb, we determined for commercial dairy cows. period immediately prior to the date of determined that the average weight gain The lower percentage rate for non-bred the outbreak for the feeder cattle while in feedlot was 562 lb. We took replacements and sexually immature contract traded on the Chicago into account a set portion of this feedlot bulls reflects that these are younger Mercantile Exchange, and by then weight gain by adding 400 lb to the animals with lower paid-in costs. For an multiplying the simple average by the average placement weight of 700 lb to early April 2001 outbreak, we estimated weight for stocker animals. In arrive at the estimated total weight of determined the compensation rate was taking a 3-month average, we used the 1,100 lb for feedlot cattle. There is no $924 per head ($1,320 × 70 percent). contract month that corresponded to the need for a price-weight adjustment for month of the FMD outbreak. Based on feedlot beef cattle. Bred Heifer Replacements an early April 2001 outbreak, the Based on an early April 2001 outbreak, we determined the Compensation rate: $1,584 per head. average futures price was $87.54 per The rate for bred heifer replacements cwt. compensation rate for feedlot beef cattle to be $814.11 per head based on an equals 120 percent of the rate We set an estimated weight of 650 lb determined for commercial dairy cows. for stocker animals based on the average futures price of $74.01 per cwt and an estimated weight of 1,100 lb We provide this higher value over following set of assumptions. The × commercial dairy cows to reflect that average feedlot placement weight of ($74.01/cwt 11.0 cwt = $814.11 per head). bred heifers are at the start of their stocker animals was 700 lb according to productive life. For an early April 2001 NASS statistics. Since calves are Dairy Cattle outbreak, we determined that the rate weaned at 500 lb, this meant a 200 lb Commercial Dairy Cows (Female Cows bred heifer replacements was $1,584 per non-feedlot gain for stocker cattle. We head ($1,320 × 120 percent). took into account a set portion of this That Are In Milk or Have Been in Milk) non-feedlot weight gain by adding 150 Compensation rate: $1,320 per head. Swine In its publication Agricultural Prices, lb to the weaned weight of 500 lb to Grower-Finisher Pigs arrive at the estimated total weight of NASS reports quarterly prices received 650 lb for stocker animals. by producers for cows sold for milking Estimated weight: 200 lb. Since the estimated weight for stocker purposes in the top dairy States and a Average futures price (adjusted): animals was less than the specified national price average. In theory, a $49.02 per cwt. weight range of the feeder cattle futures female dairy cow reaches maximum Compensation rate: $98.04 per head. contract (700–849 lb), we adjusted the value when she first starts to produce We calculated the compensation rate average futures price upwards by $5.00 milk. The dairy cow price reported by for grower-finisher pigs by taking the per cwt by taking the slide factor NASS covers animals already in milk simple average of the most recently determined by LMIC (in this case $4.00/ production and thus below their available daily futures prices over a 3- cwt) and multiplying this factor by the maximum value. Cows ready to be month period immediately prior to the difference between the futures contract culled (nearing the end of their last disease outbreak, and multiplying it by weight and the estimated weight (775 lb lactation) are greatly discounted as the the estimated weight for grower-finisher ¥ 650 lb = 125 lb or 1.25 cwt). So the value of culled cows is much lower than pigs. We relied on the lean hogs contract adjusted average futures price equaled that of cows that are milked another traded on the Chicago Mercantile $92.54 per cwt ($87.54/cwt + $5.00/ lactation. We believe the NASS price Exchange, using the contract month that cwt). We then arrived at a compensation reasonably reflects the value of the corresponded to the month of the FMD weight of $601.51 per head by milking string. Prices are reported by outbreak. multiplying the adjusted average futures NASS for the months of January, April, We determined that the estimated price of $92.54 per cwt by the estimated July, and October and are available at weight of grower-finisher pigs was 200 weight of 650 lb ($92.54/cwt × 6.50 cwt the end of the following month. lb based on the following assumptions. = $601.51 per head). January’s price would be used if the We assumed that pigs were 50 lb when FMD outbreak occurred in the months entering the grower-finisher phase and Feedlot Animals of April, May, or June; April’s price were slaughtered at 255 lb, which was Estimated weight: 1,100 lb. would be used if the outbreak occurred the average slaughter weight for 1999 Average futures price: $74.01 per cwt. in the months of July, August, or and 2000 according to NASS data Compensation rate: $814.11 per head. September; July’s price would be used (Livestock Slaughter, January 2001). We determined the compensation rate if the outbreak occurred in the months This represented an average weight gain for feedlot animals by taking the simple of October, November, and December; of 205 lb. We took into account a set average of the most recently available and October’s price would be used if the portion of this weight gain by adding daily futures prices over a 3-month outbreak occurred in the months of 150 lb to the average weight of 50 lb for period immediately prior to the disease January, February, or March. pigs entering the grower-finisher phase outbreak and multiplying it by the Based on an early April 2001 to arrive at the estimated total weight of estimated weight for feedlot animals. outbreak, we determined the 200 lb for grower-finisher pigs. We looked to the live cattle futures compensation rate for commercial dairy It was necessary to adjust the average contract traded on the Chicago cows was $1,320 per head. This rate futures price since the futures contract
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price is based on the slaughter (carcass) AMS price series, and there was less Breeding Animals price and not on live animals. A hog than 3 months of available price data. Beef Cattle carcass weighs approximately 74 Based on NAHMS data, the average percent of a live hog. The weight slaughter weight of lambs is 145 lb and Beef Cows (Commercial Herds) difference represents dressing. We the average feedlot placement weight is Estimated weight: 1,000 lb. arrived at an adjusted average futures 85 lb. Therefore, we determined the Price: $74.01 per cwt (same price per price of $49.02/cwt, which we then average weight gain of lambs during the cwt paid for feedlot beef cattle). multiplied by the estimated weight of feedlot or finishing phase to be 60 lb. Compensation rate: $740.10 per head. 200 lb to get a compensation rate of We took into account a set portion of The average weight of a beef cow is $98.04 per head ($49.02/cwt × 2.00 cwt). this weight gain by adding 45 lb to the 1,016 lb according to NAHMS data average placement weight of 85 lb to (Beef, 1997). Therefore, we used 1,000 Nursery Pigs arrive at the estimated total weight of lb as the estimated weight for Compensation rate: $51.70 per head. 130 lb for slaughter lambs. We then commercial beef cows. A comparison of We determined the rate for nursery calculated the compensation rate to be fed beef cattle prices and prices for bred pigs by taking the simple average of the $99.76 per head by multiplying the young females and middle age cows most recently available national feeder average AMS lamb carcass price by the (Drovers’ Journal) found that bred cow pig (40 lb) prices reported by AMS. dressing percentage by the prices were 83 percent of fed beef cattle These prices are reported on a weekly compensation weight ($155.03/cwt × prices. Though the premium for basis. We took the simple average over 49.5 percent × 1.30 cwt = $99.76 per breeding purposes is not readily known, a 3-month period immediately prior to head). The compensation rate we note that by providing the same the date of the disease outbreak. The determined for slaughter lambs would compensation rate ($/cwt) for AMS prices for these animals are also apply to wethers raised for wool commercial breeding beef cows as is reported on a per-head basis, so it is not production. used for feedlot beef cattle would necessary to determine the provide some measure of the value compensation weight. The average Preweaned Lambs given for breeding purposes. Therefore, feeder pig price over this 3-month Estimated weight: 70 lb. we calculated the compensation rate for period was $51.70 per head. Adjusted price: $82.11 per cwt. beef cows by taking the applicable futures price ($/cwt) calculated for Preweaned Piglets Compensation rate: $57.48 per head. We determined the compensation rate feedlot beef cattle ($74.01/cwt), and Compensation rate: $32.72 per head. for preweaned lambs by taking the price multiplying that average price by the We determined the rate for preweaned calculated for slaughter lambs ($76.74/ estimated weight of 1,000 lb for beef piglets by taking the simple average of cwt) and adding a price-weight cows. For an early April 2001 outbreak, we determined the compensation rate the most recently available national adjustment of 7 percent or $5.37/cwt for beef cows (commercial herds) was early weaned pig (10 lb) prices, as based on the weight differential between $740.10 per head ($74.01 × 10.0 cwt = reported by AMS. These prices are slaughter lambs and preweaned lambs. $740.01 per head). reported on a weekly basis. We took the We then multiplied the adjusted price of simple average over a 3-month period $82.11/cwt by the assigned estimated Bred Replacement Heifers (Commercial immediately prior to the date of the weight of 70 lb, which is the average Herds) disease outbreak. The AMS prices for weaning weight of these animals these animals are also reported on a per- Compensation rate: $888.12 per head. according to 2001 NAHMS data, to get To reflect that bred heifers are at the head basis, so it is not necessary to a compensation rate of $57.48 per head determine the compensation weight. start of their productive life, these (($76.74/cwt + $5.37/cwt) × .70 cwt). animals were valued at 120 percent of The average national early weaned pig the compensation rate for beef cows price over this 3-month period was Weaned Feeder Lambs (commercial herds). For an early April $32.72 per head. Estimated weight: 85 lb. 2001 outbreak, we determined the rate Sheep Adjusted price: $81.34 per cwt. for bred replacement heifers to be Compensation rate: $69.13 per head. $888.12 per head ($740.10 per head × Slaughter Lambs and Wethers Raised for We used 85 lb as the estimated weight 120 percent). Wool Production for weaned feeder lambs, which Estimated weight: 130 lb. corresponds to the average weight of Beef Bulls (Commercial Herds) Price: $76.74 per cwt. lambs entering a feedlot or finishing Compensation rate: $1,850.25 per Compensation rate: $99.76 per head. stage prior to slaughter. We then head. We determined the compensation rate calculated the compensation rate for The rate for beef bulls (commercial for slaughter lambs by multiplying the weaned feeder lambs by taking the price herds) equals 250 percent of the rate calculated price for slaughter lambs by calculated for slaughter lambs ($76.74/ established for beef cows (commercial the estimated weight for this cwt) and adding a price-weight herds). For an early April 2001 classification of animal. adjustment of 6 percent or $4.60/cwt outbreak, we determined that the rate We calculated the price for slaughter based on the weight differential between for beef bulls was $1,850.25 per head lambs by taking the simple average of slaughter lambs and weaned feeder ($740.10 × 250 percent). the most recently available national lambs. This price-weight adjustment is Registered animals, animals in a lamb carcass prices, as reported by generally positive, except during seedstock herd, and donor animals: AMS. These prices are reported on a periods of high feed costs. We then weekly basis. We normally take the multiplied the adjusted average price of Beef Cows and Bred Replacement simple average over a 3-month period $81.34/cwt by the assigned estimated Heifers immediately prior to the date of the weight of 85 lb for weaned feeder lambs Compensation rate: $1,850.25 per disease outbreak, which we would then to get a compensation rate of $69.13 per head. multiply by a dressing percentage of head (($76.74/cwt + $4.60/cwt) × .85 Beef cows and bred replacement 49.5 percent. However, this is a new cwt). heifers that are breeding animals and are
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also registered animals, part of a determined the rate was $196.08 per Registered animals, animals in a seedstock herd, or donor animals head ($98.04 per head (grower-finisher seedstock flock, and donor animals: × receive 250 percent of the compensation rate) 200 percent). Compensation rate for breeding ewes: rate established for beef cows Registered animals, animals in a $245.56 per head. (commercial herds). For an early April seedstock herd, and donor animals: Compensation rate for breeding rams: 2001 outbreak, we determined the rate $306.96 per head. was $1,850.25 per head ($740.10 × 250 Compensation rate: $294.12 per head. The rate for ewes or rams that are percent). The rate for pigs that are breeding breeding animals and are also registered animals and are also registered animals, Beef Bulls animals, part of a seedstock flock, or part of a seedstock herd, or donor donor animals equals 200 percent of the Compensation rate: $2,220.30 per animals equals 300 percent of the rate rate established for commercial breeding head. established for grower-finisher pigs. The ewes and rams. For an early April 2001 Beef bulls that are breeding animals value of seedstock boars would be the outbreak, we determined the rate for and are also registered animals, part of same as seedstock sows. For an early ewes was $245.56 per head ($122.78 per a seedstock herd, or donor animals April 2001 outbreak, we determined the head × 200 percent) and the rate for receive 300 percent of the compensation rate for seedstock sows and boars to be rams was $306.96 per head ($153.48 per rate established for beef cows $294.12 per head ($98.04 per head head × 200 percent). (commercial herds). For an early April (grower-finisher rate) × 300 percent). 2001 outbreak, we determined the rate List of Subjects in 9 CFR Part 53 Sheep for these animals was $2,220.30 per Animal diseases, Indemnity × head ($740.10 300 percent). Commercial Ewes payments, Livestock, Poultry and Dairy Cattle Estimated weight: 160 lb. poultry products. Accordingly, we propose to revise 9 Dairy Bulls Price: $76.74 per cwt (same adjusted price per cwt used for slaughter lambs). CFR part 53 to read as follows: Compensation rate: $3,300 per head. Compensation rate: $122.78 per head. PART 53—FOOT-AND-MOUTH Using the same bull-cow relationship In determining the compensation rate as with beef animals, the rate for DISEASE, PLEUROPNEUMONIA, for commercial ewes, we would use the RINDERPEST, AND CERTAIN OTHER breeding dairy bulls equals 250 percent average AMS price ($76.74/cwt) of the rate determined for commercial COMMUNICABLE DISEASES OF calculated for slaughter lambs, and LIVESTOCK OR POULTRY dairy cows. For an early April 2001 multiply this average price by the outbreak, we determined the rate was estimated weight for commercial ewes. Sec. $3,300 per head ($1,320 250 percent). The slaughter lamb price is greater than 53.1 Definitions. Registered animals, animals in a the cull ewe slaughter price. By 53.2 Disease control and eradication; payments authorized; determination of seedstock herd, and donor animals: providing the higher slaughter lamb price for breeding ewes and applying disease. 53.3 Payments for animals and materials; Dairy Cows and Bred Replacement the breeding animal weight, we Heifers other compensation; request for review. recognize a premium that these breeding 53.4 Destruction of animals. Compensation rate: $3,300 per head. animals might receive. We also 53.5 Disinfection or destruction of The rate for dairy cows and bred determined the estimated weight of materials. replacement heifers that are breeding commercial ewes to be 160 lb. 53.6 Cleaning and disinfection of animals. animals and are also registered animals, Therefore, for an early April 2001 53.7 Presentation of claims. part of a seedstock herd, or donor outbreak, we determined the rate for 53.8 Claims not allowed. animals equals 250 percent of the rate commercial ewes was $122.78 per head Authority: 21 U.S.C. 111, 114, 114a, and established for commercial dairy cows. ($76.74/cwt × 160 lb). 134a–134h; 7 CFR 2.22, 2.80, and 371.4. For an early April 2001 outbreak, we Commercial Rams Cross Reference: For nonapplicability determined the rate for cows and bred of part 53 with respect to certain claims replacement heifers was $3,300 per Estimated weight: 200 lb. × for indemnity, see §§ 50.15 and 51.10 of head ($1,320 250 percent). Price: $76.74 per cwt. this chapter. Compensation rate: $153.48 per head. Dairy Bulls In determining the compensation rate § 53.1 Definitions. Compensation rate: $3,960 per head. for commercial rams, we would use the Accredited veterinarian. A The rate for dairy bulls that are average AMS price ($76.74/cwt) veterinarian approved by the breeding animals and are also registered calculated for slaughter lambs, and Administrator in accordance with part animals, part of a seedstock herd, or multiply this average price by the 161 of this chapter to perform functions donor animals equals 300 percent of the estimated weight for commercial rams. specified in parts 1, 2, 3, and 11 of rate established for commercial dairy The slaughter lamb price is greater than subchapter A of this chapter and cows. For an early April 2001 outbreak, the cull ram slaughter price. By subchapters B, C, and D of this chapter, we determined the compensation rate providing the higher lamb slaughter × and to perform functions required by for bulls was $3,960 per head ($1,320 price for breeding rams and applying cooperative State-Federal disease 300 percent). the breeding animal weight, we control and eradication programs. Swine recognize a premium that these breeding Administrator. The Administrator, animals might receive. We also Animal and Plant Health Inspection Sows and Boars (Commercial Herds) determined the estimated weight of Service, or any person authorized to act Compensation rate: $196.08 per head. commercial rams to be 200 lb. for the Administrator. The rate for commercial sows and Therefore, for an early April 2001 Animal and Plant Health Inspection boars equals 200 percent of the rate outbreak, we determined the rate for Service (APHIS). The Animal and Plant established for grower-finisher pigs. For commercial breeding rams was $153.48 Health Inspection Service of the United an early April 2001 outbreak, we per head ($76.74/cwt × 200 lb). States Department of Agriculture.
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Animals. Livestock, poultry, and all Exotic Newcastle disease (END). Any supervision of a State or Federal other members of the animal kingdom, velogenic Newcastle disease. Exotic veterinarian; including birds whether domesticated Newcastle disease is an acute, rapidly (2) Identified by an eartag specifically or wild, but not including man. spreading, and usually fatal viral approved by APHIS for identification of Animals affected by disease. Animals disease of birds and poultry. animals officially vaccinated for foot- determined to be infected with, infested Federal veterinarian. A veterinarian and-mouth disease; and with, or exposed to, a disease covered employed and authorized by the Federal (3) Reported to the Administrator as by this part, including official Government to perform the services an official vaccinate for foot-and-mouth vaccinates. required by this part. disease promptly after vaccination by APHIS representative. Any individual Highly pathogenic avian influenza. the State or Federal veterinarian employed by or acting as an agent on (1) Any influenza virus that kills at supervising the vaccination. behalf of the Animal and Plant Health least 75 percent of eight 4- to 6-week- Person. Any individual, corporation, Inspection Service who is authorized by old susceptible chickens within 10 days company, association, firm, partnership, the Administrator to perform the following intravenous inoculation with society, joint stock company, or other services required by this part. 0.2 ml of a 1:10 dilution of a bacteria- legal entity. Bird. Any member of the class aves free, infectious allantoic fluid; Poultry. Chickens, ducks, geese, other than poultry. (2) Any H5 or H7 virus that does not swans, turkeys, pigeons, doves, Breeding animal. Any animal being meet the criteria in paragraph (1) of this pheasants, grouse, partridges, quail, raised for the purpose of producing definition, but has an amino acid guinea fowl, and pea fowl. market animals or other breeding sequence at the hemagglutinin cleavage Rare animal. An animal that is animals and, in the case of a female, has site that is compatible with highly extremely uncommon in the United donated embryos or been bred, and in pathogenic avian influenza viruses; or States and that is neither an exotic the case of a male, is sexually intact and (3) Any influenza virus that is not an animal nor a member of an endangered has reached the age of sexual maturity. H5 or H7 subtype and that kills one to or threatened species. five chickens in the test described in Commercial breeding animal. Any Registered animal. An animal of a paragraph (1) of this definition and breeding animal other than a registered particular breed for which individual grows in cell culture in the absence of animal, an animal that is part of a records of ancestry are maintained, and trypsin. seedstock herd or flock, or a donor for which individual registration ISA Program Veterinarian. The APHIS animal. certificates are issued and recorded by veterinarian assigned to manage the Department. The United States a recognized breed association whose infectious salmon anemia program for Department of Agriculture. purpose is the improvement of the APHIS in the State of Maine and who Disease. Any communicable disease breed. reports to the area veterinarian in Secretary. The Secretary of of livestock or poultry for which charge. indemnity is not provided elsewhere in Agriculture of the United States or any Livestock Marketing Information officer or employee of the Department this subchapter, and contagious or Center. The organization, funded infectious animal diseases, such as foot- authorized to act for the Secretary. cooperatively by the United States Seedstock herd or flock. In the case of and-mouth disease, rinderpest, Department of Agriculture, State land contagious pleuropneumonia, exotic cattle and sheep, a herd or flock in grant universities, and livestock which, during the previous 5 years, at Newcastle disease, highly pathogenic industry associations, that develops, avian influenza, and infectious salmon least 25 percent of the animals born to disseminates, and maintains economic the herd or flock have, for breeding anemia that, in the opinion of the and market data relating to the livestock Secretary, constitute an emergency or an purposes, been sold to another producer industry. or transferred to a separate herd or flock, extraordinary emergency and threaten Market animal. Any animal being the livestock or poultry of the United or, in the case of swine, a herd in which raised for the primary purpose of at least 50 percent of the gilts produced States. slaughter for meat, or, in the case of Disease outbreak. The initial have, for breeding purposes, been sold dairy animals, the production of milk, to another producer or transferred to a occurrence of the disease, as determined or, in the case of certain sheep, the and reported by the United States separate herd. production of wool. State. Each of the States of the United Department of Agriculture. Materials. Barns or other structures; States, the District of Columbia, Puerto Donor animal. Any animal, other than straw, hay, and other feed and bedding Rico, the Northern Mariana Islands, a registered animal or an animal that is for animals; agricultural products and Guam, the Virgin Islands of the United part of a seedstock herd, that has byproducts; conveyances; equipment; States, or any other territory or donated at least two embryos, in the clothing; and any other article. possession of the United States. case of females, or at least 100 units of National Veterinary Services State representative. An individual semen, in the case of males, for sale to Laboratories. The organizational unit employed by a State or a political another producer or transfer to a within the Animal and Plant Health subdivision to perform the specified separate herd or flock. Inspection Service delegated functions agreed to by the Department Endangered or threatened species. responsibility for providing services for and the State. Those species defined as endangered the diagnosis of domestic and foreign State veterinarian. A veterinarian species or threatened species in the animal diseases, diagnostic support for employed and authorized by a State or Endangered Species Act (16 U.S.C. 1531 disease control and eradication its political subdivision to perform the et seq.) and regulations promulgated programs, import and export testing of services required by this part. thereunder and as they may be animals, training, and laboratory subsequently amended. certification for selected diseases. § 53.2 Disease control and eradication; Exotic animal. Any animal that is Official vaccinate. Any animal that payments authorized; determination of native to a foreign country or of foreign has been: disease. origin or character, or is not native to (1) Vaccinated with an official vaccine (a) Disease control and eradication. the United States. for foot-and-mouth disease under the (1) The Administrator may cooperate
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with States, political subdivisions, the fair and reasonable costs incurred representative and a State farmers’ associations and similar under paragraph (a)(1)(iii) of this representative, or, if the State organizations, and individuals to section. authorities approve, by an APHIS control and eradicate disease. Upon (4) A cooperative program for the representative alone. Animals may be agreement of the States, political purchase, destruction, and disposition appraised in groups provided they are subdivisions, farmers’ associations and of birds will be limited to birds the same species and type and provided similar organizations, or individuals to determined by the Administrator to that, where appraisal is by the head, cooperate with the Administrator in the constitute a threat to the poultry each animal in the group is the same control and eradication of disease, the industry of the United States. value per head, or where appraisal is by Administrator may pay, subject to the (b) Determination of disease. the pound, each animal in the group is availability of funding, the costs of (1) The determination that animals are the same value per pound. activities listed in paragraphs (a)(1)(i) affected by disease will be made by (2) Fixed-rate method. The through (a)(1)(iii) of this section, as either a Federal veterinarian or a State Administrator will establish rates based provided in paragraphs (a)(2), (a)(3), and veterinarian who has completed the on the value per head for cattle (beef (a)(4) of this section: APHIS course on foreign animal disease and dairy cattle), swine, and sheep as (i) Purchase, destruction, and diagnosis.1 The determination that provided in paragraphs (a)(2)(i) through disposition of animals affected by animals are affected by disease will be (a)(2)(iii) of this section. Rates may be disease; based on such factors as clinical established for other animals for which (ii) Purchase, destruction, and evidence of the disease (signs, necropsy the Administrator finds sufficient disposition of materials contaminated lesions, and history of the occurrence of information publicly available to make by or exposed to a disease agent when the disease), diagnostic tests for the a calculation of the animal’s fair market the cost of cleaning and disinfection disease based on National Veterinary value in accordance with the procedures would exceed the value of the materials Services Laboratories-approved provided in paragraph (a)(2) of this or cleaning and disinfection would be protocols,2 or epidemiological evidence section. impracticable; and (evaluation of clinical evidence and the (i) Classification. (iii) Cleaning and disinfection of degree of risk posed by the potential (A) Animals within each species will materials that are contaminated by or spread of the disease based on the be classified as market animals or exposed to a disease agent. virulence of the disease, its known breeding animals. (2) The Administrator is authorized to means of transmission, and the pay 50 percent of the costs under (B) Market animals will be further particular species involved). classified according to their production paragraphs (a)(1)(i) and (a)(1)(ii) of this (2) The determination that materials section; except that for infectious phase, including whether or not the are contaminated by or exposed to a animals are weaned and whether or not salmon anemia the Administrator may disease agent shall be made by an pay up to 60 percent of the costs under the animals are on finishing rations (i.e., APHIS representative or a State at a feedlot or finishing barn) as follows: paragraphs (a)(1)(i) and (a)(1)(ii) of this representative, based on the guidance of section; and except that for exotic (1) Beef cattle. Preweaned calves; non- a Federal veterinarian or a State Newcastle disease or highly pathogenic feedlot, but weaned (stocker) animals; veterinarian. avian influenza, or any other case where and feedlot animals. the animals were affected by a disease § 53.3 Payments for animals and (2) Dairy cattle. Commercial dairy prior to or during interstate movement materials; other compensation; request for cows (female dairy cows that are/have and are not eligible to receive indemnity review. been in milk), non-bred heifer from any State, the Administrator may (a) Valuation of animals. The value of replacements and sexually immature pay up to 100 percent of the costs under animals affected by disease and subject bulls, and bred heifer replacements. paragraphs (a)(1)(i) and (a)(1)(ii) of this to destruction will be the fair market (3) Swine. Grower-finisher pigs, section; and except that for foot-and- value based on an appraisal of the nursery pigs, and preweaned piglets. mouth disease, the Administrator will animals: Provided, that, In the case of (4) Sheep. Preweaned lambs, weaned pay 100 percent of the costs under foot-and-mouth disease only, if the feeder lambs, slaughter lambs, and paragraphs (a)(1)(i) and (a)(1)(ii) of this Administrator determines that appraisal wethers raised for wool production. section: Provided, however, That when of animals affected by disease would be (C) Breeding animals will be further the Secretary determines an impracticable, or would otherwise classified based on whether they are extraordinary emergency exists, the compromise efforts to effectively control commercial breeding animals, or are Administrator will pay 100 percent of and eradicate the disease, the registered animals, part of a seedstock the costs (i.e., the fair market value) Administrator may determine the fair herd or flock, or donor animals as under paragraphs (a)(1)(i) and (a)(1)(ii) market value of certain animals by a follows: of this section, subject to the availability fixed-rate method, as provided in (1) Beef cattle. Beef cows (commercial of funding: Provided, further, That any paragraph (a)(2) of this section. herds); bred replacement heifers compensation paid will not exceed the (1) Appraisal. Appraisals will be (commercial herds); beef bulls difference between the compensation conducted jointly by an APHIS (commercial herds); and registered received from a State or other source animals, animals in a seedstock herd, and the fair market value of the animals 1 The locations of qualified Federal veterinarians and donor animals. or materials. and State veterinarians may be obtained by writing (2) Dairy cattle. Dairy bulls; and (3) Costs incurred under paragraph to Emergency Programs, Veterinary Services, registered animals, animals in a Animal and Plant Health Inspection Service, USDA, (a)(1)(iii) of this section will be shared 4700 River Road, Unit 41, Riverdale, MD 20737– seedstock herd, and donor animals. by the Department and the State as 1231, or by referring to the local telephone book. (3) Swine. Sows and boars agreed to by the Department and the 2 A copy of the protocols for diagnostic tests of (commercial herds); and registered State in which the work is done: diseases covered by this part may be obtained by animals, animals in a seedstock herd, writing to Emergency Programs, Veterinary and donor animals. Provided, however, That in the case of Services, Animal and Plant Health Inspection foot-and-mouth disease, the Service, USDA, 4700 River Road Unit 41, Riverdale, (4) Sheep. Ewes and rams Administrator will pay 100 percent of MD 20737–1231. (commercial flocks); and registered
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animals, animals in a seedstock flock, (B) Dairy cattle. The rate established the disease outbreak, multiplied by the and donor animals. for commercial dairy cows will be based AMS reported dressing percentage, or (ii) Rates for market animals.—(A) on the most recent quarterly price per 49.5 percent if the dressing percentage Beef cattle. The rates established for head reported by NASS. The rate for is not reported. different classifications of beef cattle non-bred heifer replacements and (2) The estimated weight set by will be based on prices from applicable sexually immature bulls will be 70 APHIS for preweaned lambs, weaned futures contracts traded on the Chicago percent of the rate determined for feeder lambs, slaughter lambs, and Mercantile Exchange. The rates for commercial dairy cows. The rate for wethers raised for wool production will preweaned calves and stocker animals bred heifer replacements will be 120 be the average weight of animals in that will be based on the feeder cattle futures percent of the rate determined for production phase based on the most contract. The rate for feedlot animals commercial dairy cows. recently available information from will be based on the live cattle futures (C) Swine.—(1) Grower-finisher pigs. NASS and NAHMS. contract. The rate will be determined by The rate established for grower-finisher (3) For preweaned lambs and weaned multiplying the applicable futures price pigs will be based on the lean hogs feeder lambs, an upward or downward ($/cwt) by the estimated weight set by futures contract traded on the Chicago percentage adjustment in the average APHIS for that classification of animal. Mercantile Exchange. The rate will be AMS price will be made to reflect the (1) The applicable futures price ($/ determined by multiplying the difference in weight between preweaned cwt) will be the simple average of the applicable futures price ($/cwt) by the lambs or weaned feeder lambs and most recently available daily futures estimated weight set by APHIS for slaughter lambs. The price-weight prices over a 3-month period grower-finisher pigs. percentage adjustment will be supplied immediately prior to the date of the (i) The applicable futures price ($/ by the Livestock Marketing Information cwt) for grower-finisher pigs will be the disease outbreak using the futures Center. simple average of the most recently (iii) Rates for breeding animals.—(A) contract month that corresponds to the available daily futures prices over a 3- Generally. The rates for breeding month of the disease outbreak, or the month period immediately prior to the animals will be determined based on the next succeeding contract month if there date of the disease outbreak using the rates of other market or breeding is not an applicable futures contract for futures contract month that corresponds animals, and then adjusted to include the month that corresponds to the to the month of the disease outbreak, or any premium that reflects the animals’ month of the disease outbreak: the next succeeding contract month if breeding value. Breeding animals that Provided, however, In the case of there is not an applicable futures are registered animals, animals in a preweaned beef calves, the applicable contract for the month that corresponds seedstock herd or flock, or animals that futures price will be the simple average to the month of the disease outbreak, have donated germ plasm that has been of the most recently available daily multiplied by 74 percent. sold to other producers or transferred to futures prices for that animal over a 3- (ii) The estimated weight set by separate herds or flocks, will receive a month period using the futures contract APHIS for grower-finisher pigs will be higher premium than commercial month that corresponds to the month the average weight of grower-finisher breeding animals. the claimant has historically weaned pigs based on the most recently (B) Beef cattle.—(1) Beef cows their calves, or the next succeeding available information from NASS and (commercial herds). (i) The rate contract month if there is not an NAHMS. established for beef cows (commercial applicable futures contract for the (2) Nursery pigs. The rate established herds) that are breeding animals will be month that corresponds to the month of for nursery pigs will be based on the determined by multiplying the planned weaning. simple average of the most recently applicable futures price ($/cwt) for (2) The estimated weight set by available national feeder pig (40 lb) feedlot animals, as described in APHIS for different classifications of prices reported by the Department’s paragraph (a)(2)(ii)(A)(1) of this section, beef cattle will be the average weight of Agricultural Marketing Service (AMS) by the estimated weight set by APHIS animals in that production phase based over a 3-month period immediately for beef cows. on the most recently available prior to the date of the disease outbreak. (ii) The estimated weight set by information from the Department’s ( 3) Preweaned piglets. The rate APHIS for beef cows will be the average National Agricultural Statistics Service established for preweaned piglets will weight of beef cows based on the most (NASS) and National Animal Health be based on the simple average of the recently available information from Monitoring System (NAHMS). most recently available national early NASS and NAHMS. (3) If the estimated weight for a weaned pig (10 lb) prices reported by (2) Bred replacement heifers particular classification of animal does AMS over a 3-month period (commercial herds). The rate established not fall within the weight range of the immediately prior to the date of the for bred replacement heifers animal covered by the futures contract, disease outbreak. (commercial herds) that are breeding an upward or downward adjustment in (D) Sheep. The rate established for animals will be 120 percent of the rate the average futures price will be made preweaned lambs, weaned feeder lambs, established for beef cows (commercial to reflect this difference in weight and slaughter lambs, and wethers raised for herds). to account for the fact that the price per wool production will be based on the (3) Beef bulls (commercial herds). The cwt varies with the total weight of the national lamb carcass price, as reported rate established for beef bulls animal. The adjustment will be by AMS. The rate will be determined by (commercial herds) that are breeding calculated by multiplying the price- multiplying the average AMS price ($/ animals will be 250 percent of the rate weight adjustment factor, as determined cwt) by the estimated weight set by established for beef cows (commercial by the Livestock Marketing Information APHIS for that classification of animal. herds). Center, by the difference between the (1) The average AMS price ($/cwt) (4) Registered animals, animals in a average weight of the animal covered by will be the simple average of the most seedstock herd, and donor animals.— (i) the futures contract and the estimated recently available national lamb carcass The rate established for beef cows and weight set by APHIS for that prices reported by AMS over a 3-month bred replacement heifers that are classification of animal. period immediately prior to the date of breeding animals and are registered
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animals, part of a seedstock herd, or (i) The rate established for ewes that Administrator. The claimant must donor animals, will be 250 percent of are breeding animals and are registered include in the request the reasons, the rate established for beef cows animals, part of a seedstock flock, or including any supporting (commercial herds). donor animals, will be 200 percent of documentation, that the valuation in (ii) The rate established for beef bulls the rate established for commercial total of all animals or all materials or the that are breeding animals and are breeding ewes. amount of other compensation should registered animals, part of a seedstock (ii) The rate established for rams that be different from the valuation or herd, or donor animals, will be 300 are breeding animals and are registered amount determined by appraisal, fixed- percent of the rate established for beef animals, part of a seedstock flock, or rate method, or other means provided cows (commercial herds). donor animals, will be 200 percent of for in this section. The decision by the (C) Dairy cattle.—(1) Dairy bulls. The the rate established for commercial Administrator regarding the valuation of rate established for dairy bulls that are breeding rams. animals or materials or the amount of breeding animals will be 250 percent of (iv) Request for appraisal. An owner other compensation is final. the rate established for commercial of animals subject to valuation by the § 53.4 Destruction of animals. dairy cows. fixed-rate method may submit a written (2) Registered animals, animals in a request to the Administrator asking that (a) With the exception of official seedstock herd, and donor animals. the animals affected by disease be vaccinates, animals affected by disease (i) The rate established for dairy cows valued by appraisal instead of by fixed- must be destroyed promptly after and bred replacement heifers that are rate method. The owner must include in valuation and disposed of by burial, breeding animals and are registered the request the reasons why valuation burning, or other manner approved by animals, part of a seedstock herd, or by the fixed-rate method would be the Administrator as not contributing to donor animals, will be 250 percent of unsuitable. In determining whether to the spread of the disease. the rate established for commercial grant the request, the Administrator will (b) The destruction of animals and the take into account whether allowing the dairy cows. burial, burning, or other disposal of appraisal would compromise efforts to (ii) The rate established for dairy bulls carcasses of animals under this part effectively control and eradicate the that are breeding animals and are must be under the supervision of an disease. The decision by the registered animals, part of a seedstock APHIS representative or a State Administrator regarding the owner’s herd, or donor animals, will be 300 representative who will prepare and request for appraisal is final. A denial of percent of the rate established for transmit to the Administrator a report a request for appraisal under this commercial dairy cows. identifying the animals destroyed and paragraph does not affect the owner’s (D) Swine.—(1) Sows and boars the manner of their disposition. right to request a review of the valuation (c) Official vaccinates will be (commercial herds). The rate established under paragraph (d) of this section. destroyed or otherwise handled in a for commercial sows and boars that are (b) Valuation of materials. The value manner as directed by the Administrator breeding animals will be 200 percent of of materials destroyed because of to prevent the dissemination of the the rate established for grower-finisher contamination or exposure to a disease disease. Official vaccinates not subject pigs. agent will be the material’s fair market to destruction may include, at the (2) Registered animals, animals in a value based on an appraisal: Provided, discretion of the Administrator, exotic seedstock herd, and donor animals. that, In the case of foot-and-mouth animals, rare animals, or animals (i) The rate established for sows that disease only, if an appraisal is found to belonging to an endangered or are breeding animals and are registered be impracticable, or would otherwise threatened species. If official vaccinates animals, part of a seedstock herd, or compromise efforts to effectively control are allowed to move to a slaughtering or donor animals, will be 300 percent of and eradicate the disease, the rendering facility in lieu of destruction the rate established for grower-finisher Administrator may authorize the value or disposition by other means, then any pigs. to be determined by other means, such proceeds gained from the sale of the ( ii) The rate established for boars that as through records or other animals to the slaughtering or rendering are breeding animals and are registered documentation maintained by the facility will be subtracted from any animals, part of a seedstock herd, or claimant indicating the value of the indemnity payment from APHIS for donor animals, will be 300 percent of materials destroyed. The appraisal of which the producer is eligible under the rate established for grower-finisher materials will be conducted jointly by § 53.2(a)(2) of this part. pigs. an APHIS representative and a State (d) In the case of animals depopulated (E) Sheep.—(1) Ewes and rams representative, or, if the State due to infectious salmon anemia, (commercial flocks). authorities approve, by an APHIS salvageable fish may be sold for (i) The rate established for representative alone. rendering, processing, or any other commercial ewes and rams that are (c) Other compensation.—(1) Costs for purpose approved by the Administrator. breeding animals will be determined by cleaning and disinfection. If fish retail salvage value, the proceeds multiplying the average AMS price ($/ Compensation for cleaning and gained from the sale of the fish will be cwt) for slaughter lambs, as described in disinfection will be based on receipts or subtracted from any indemnity payment paragraph (a)(2)(ii)(D)(1) of this section, other documentation maintained by the from APHIS for which the producer is by the estimated weight set by APHIS claimant verifying expenditures for eligible under § 53.2(a)(2). for commercial ewes and rams. cleaning and disinfection activities (ii) The estimated weight set by authorized by this part. § 53.5 Disinfection or destruction of APHIS for commercial ewes and rams (2) [Reserved] materials. will be the average weight of those (d) Request for review. A claimant All materials that have been animals based on the most recently who disagrees with the valuation in contaminated by or exposed to a disease available information from NASS and total of all animals or all materials or the agent must be cleaned and disinfected NAHMS. amount of other compensation, as under the supervision of an APHIS (2) Registered animals, animals in a determined in this section, may submit representative or a State representative: seedstock flock, and donor animals. a written request for review to the Provided, however, That in cases in
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which the cost of cleaning and § 53.8 Claims not allowed. (3) Develop and implement disinfecting materials would exceed the (a) The Department will not allow biosecurity protocols for use at all materials’ value or cleaning and claims arising under this part if the participant-leased finfish sites and disinfecting the materials would be payee has not complied with all Federal participant-operated vessels engaged in impracticable, the materials shall be quarantine requirements or State aquaculture operations throughout destroyed under the supervision of an quarantine requirements consistent with Maine. A copy of these protocols shall APHIS representative or a State Federal law or regulations in effect for be submitted to the ISA Program representative, upon determination of the control and eradication of the Veterinarian at the time the participant their value as provided in § 53.3. The disease. enrolls in the ISA program and within APHIS representative or State (b) Costs for the care and feeding of 15 days of any change in the protocols. representative will prepare and transmit animals held for destruction will not be (4) Develop, with the involvement of to the Administrator a report identifying paid by the Department, unless the the participant’s accredited veterinarian all materials destroyed and the manner payment of such cost is specifically and the fish site health manager, a site- of their disposition. authorized or approved by the specific ISA action plan for the control Administrator. and management of ISA. A copy of the § 53.6 Cleaning and disinfection of (c) The Department will not allow action plan shall be submitted to APHIS animals. claims arising out of the destruction of for review at the time the participant Animals of species not susceptible to animals or materials unless the animals enrolls in the ISA program and within the disease for which a quarantine has or materials have been valued as 15 days of any change in the action been established, but which have been prescribed in this part. plan. exposed to the disease, must be cleaned (d) The Department will not allow (5) Participate in the State of Maine’s and disinfected, as directed by, and claims arising out of the destruction of integrated pest management (IPM) under the supervision of, an APHIS animals or materials that have been program for the control of sea lice on representative or a State representative. moved or handled by the owner, or by salmonids. A copy of the management the owner’s representative acting on plan developed by the participant for § 53.7 Presentation of claims. behalf of the owner, in violation of any the State IPM program shall be (a) Claims for compensation under Federal law or regulation, or any State submitted to APHIS for review at the this part must each be presented by the law or regulation consistent with a time the participant enrolls in the ISA claimant to an APHIS representative on Federal law or regulation, administered program and within 15 days of any forms approved by APHIS. Claims for to prevent the introduction or change in the management plan. animals or materials destroyed must be dissemination of any contagious or (6) Submit to the ISA Program presented by the owner or the owner’s infectious animal disease or any Veterinarian at the time the participant designated representative. The claimant communicable livestock or poultry enrolls in the ISA program a complete shall provide any available supporting disease for which the animal or material and current fish inventory information documents that will assist the was destroyed. for each participant-leased finfish site (e) The Department will not allow Administrator, or that are requested by with site and cage identifiers. Fish claims arising out of the destruction of the Administrator, in verifying the inventory information must include the fish due to infectious salmon anemia quantity and value of animals or numbers, age, date of saltwater transfer, (ISA) unless the claimants have agreed materials destroyed and the costs of vaccination status, and previous in writing to participate fully in the their disposition, the costs of cleaning therapeutant history for all fish in each cooperative ISA control program and disinfection, and any other costs participant-leased finfish site. administered by APHIS and the State of incurred under this part for which (7) Maintain, and make available to Maine. the ISA Program Veterinarian upon compensation is sought. Examples of Participants in the ISA control supporting documentation include, but request, mortality data for each program must: participant-leased finfish site and pen in are not limited to production records, (1) Establish and maintain a purchase and sales records, breeding production. veterinary client-patient relationship (8) Cooperate with and assist APHIS records, registration papers, and with an APHIS accredited veterinarian receipts. in the completion of biosecurity audits and inform the ISA Program at all participant-leased finfish sites and (b) When animals or materials have Veterinarian in writing of the name of participant-operated vessels involved in been destroyed pursuant to this part, the their accredited veterinarian at the time salmonid aquaculture. owner of the animals or materials must the participant enrolls in the ISA certify on the claim whether or not the program and within 15 days of any (Approved by the Office of Management and applicable animals or materials are change in accredited veterinarians. Budget under control number 0579–0192) subject to any mortgage. If there is a (2) Cooperate with and assist in Done in Washington, DC, this 26th day of mortgage, the owner and each person periodic on-site disease surveillance, April 2002. holding a mortgage on the animals or testing, and reporting activities for ISA, Bill Hawks, materials must sign forms approved by which will be conducted by their APHIS Under Secretary for Marketing and Regulatory APHIS indicating they consent to the accredited veterinarian or a State or Programs. payment of any indemnity to the person Federal official as directed by the ISA [FR Doc. 02–10724 Filed 4–30–02; 8:45 am] specified on the forms. Program Veterinarian. BILLING CODE 3410–34–P
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Part VII
Department of Commerce Bureau of the Census
Qualifying Urban Areas for Census 2000; Notice
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DEPARTMENT OF COMMERCE classifications for allocating program Regulatory Flexibility Analysis is not funds, setting program standards, and required and none has been prepared (5 Bureau of the Census implementing aspects of their programs. U.S.C. 603[a]). The agencies that make such [Docket Number 010209034–2084–04] Paperwork Reduction Act nonstatistical uses of the areas and data Qualifying Urban Areas for Census should be aware that the changes to the This Notice does not represent a 2000 urban and rural criteria for Census 2000 collection of information subject to the might affect the implementation of their requirements of the Paperwork AGENCY: Bureau of the Census, programs. Reduction Act, Title 44, U.S.C., Chapter Department of Commerce. If a federal, state, local, or tribal 35. ACTION: Notice. agency voluntarily uses these urban and Urbanized Areas, Urban Clusters, and rural criteria in a nonstatistical program, SUMMARY: This Notice provides the list Major Airports it is that agency’s responsibility to of urbanized areas1 that qualified based ensure that the criteria are appropriate This section of the Notice provides on the results of the 2000 Census of for such use. In considering the lists of the Census 2000 urbanized areas. Population and Housing for the United appropriateness of such nonstatistical It also refers to the location of listings States, Puerto Rico, and the Island program uses, the Census Bureau urges of urban clusters and major airports. Areas.2 The Bureau of the Census each agency to consider permitting As a result of Census 2000, there are (Census Bureau) determined these appropriate modifications of the results 453 urbanized areas in the United urbanized areas using the urban area of implementing the urban and rural States, 11 urbanized areas in Puerto criteria published in the Federal criteria specifically for the purposes of Rico, one urbanized area in Guam, and Register on March 15, 2002 (67 FR its program. When a program permits one urbanized area in the 11663).3 In addition, this Notice alerts such modifications, the Census Bureau Commonwealth of the Northern Mariana data users to the future availability of urges each agency to use descriptive Islands, for a total of 466 urbanized lists of (1) urban clusters and (2) major terminology that clearly identifies the areas. This represents a net increase of airports evaluated for inclusion in different criteria being applied so as to 61 urbanized areas from the 405 qualifying urbanized areas and urban avoid confusion with the Census urbanized areas defined based on 1990 clusters.4 Bureau’s official urban and rural census results—396 in the United States EFFECTIVE DATE: This Notice is effective classifications. and 9 in Puerto Rico. The increase immediately. The Census Bureau examined the use consists of 76 entirely new urbanized FOR FURTHER INFORMATION CONTACT: of nonresidential land-use data (other areas, plus an additional 15 urbanized Robert Marx, Chief, Geography Division, than major airports) to better define areas created from splitting existing U.S. Census Bureau, 4700 Silver Hill urban areas, but it could not find a areas, minus 29 areas lost through Road-Stop 7400, Washington, DC consistent national database that combination and one 1990 urbanized 20233–7400; telephone (301) 457–2131; identifies such areas. This was area failing to qualify. e-mail at: [email protected]. documented in the final criteria As noted, the Census Bureau defined SUPPLEMENTARY INFORMATION: The published in the Federal Register on the Census 2000 urbanized areas using Census Bureau identifies and tabulates March 15, 2002 (67 FR 11663). As a the criteria published in the Federal data for the urban and rural populations result, many nonresidential areas that Register on March 15, 2002 (67 FR and their associated areas solely for the would be perceived as clearly part of the 11663), but in four cases—Haga˚tn˜ a GU; presentation and comparison of census urban framework (for example, St. Charles, MD; Saipan, MP; and The statistical data. The Census Bureau does industrial, commercial, and other types Woodlands, TX—it departed from the not take into account or attempt to of developed areas with employment) criteria when it created a title for an anticipate any nonstatistical uses that do not qualify for inclusion in a Census urbanized area. For St. Charles and The may be made of these areas or their 2000 urban area. The Census Bureau is Woodlands, an incorporated place with associated data, nor does it attempt to continuing research to determine if a population of at least 2,500 did exist meet the requirements of such there are objective and consistent ways within the urbanized area, but a well- nonstatistical program uses. to address issues involving inclusion of known, locally identifiable census Nonetheless, the Census Bureau nonresidential urban land uses in urban designated place with more than ten recognizes that some federal and state areas in future censuses. For this reason, times the population of the incorporated agencies are required by law to use the Census Bureau stresses the need for place also existed within the urbanized Census Bureau-defined urban and rural users of this urban area information for area. In order to make the areas more purposes other than statistical identifiable, the Census Bureau decided 1 An urbanized area consists of densely settled comparison of Census Bureau data to to use the name of the larger census territory that contains 50,000 or more people. examine the applicability of the areas designated place in the title. 2 The Island Areas are American Samoa, Guam, defined and allow for modifications for The urbanized areas defined for the the Northern Mariana Islands, and the Virgin first time in the Island Areas—Haga˚tn˜ a, Islands of the United States. nonstatistical purposes. 3 GU, and Saipan, MP—were named for An urbanized area delineated as a result of a Executive Order 12866 special census conducted by the Census Bureau the designated capitals of Guam and the during this decade (an intercensal urbanized area), This Notice is not significant for Commonwealth of the Northern Mariana at the request and expense of local governments, purposes of Executive Order 12866. Islands, respectively, to identify more will be qualified using these criteria and the clearly the most important centers population counts reported in that special census. Regulatory Flexibility Act 4 An urban cluster consists of densely settled within each urbanized area. territory that contains at least 2,500 people, but Because a Notice and opportunity for fewer than 50,000 people. Major airports adjoining public comment are not required by 5 A. Significant Urbanized Area Changes qualifying urbanized areas and urban clusters are U.S.C. 553, or any other law, for lists of There have been significant changes those airports that, according to 2000 Federal Aviation Administration statistics, had an annual urbanized areas, this Notice is not in the Census 2000 universe of enplanement of at least 10,000 people, and thus subject to the analytical requirements of urbanized areas from those defined, qualified as a primary airport in that year. the Regulatory Flexibility Act. Thus, a based on the 1990 census and criteria.
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These changes include new areas, areas Porterville, CA San Juan, PR (Caguas, PR; Cayey, PR; formed by splits or mergers, name Prescott, AZ Humacao, PR; and Vega Baja—Manatı´, changes, and areas with significant Radcliff—Elizabethtown, KY PR) boundary changes. St. Augustine, FL Seattle, WA (Seattle, WA and Tacoma, 1. There are 76 urbanized areas newly St. Charles, MD WA) qualified for Census 2000; these were St. George, UT Youngstown, OH–PA (Sharon, PA–OH not part of any 1990 census urbanized Saipan, MP and Youngstown, OH) Salisbury, MD—DE area (UA): 3. There are 25 urbanized areas Sandusky, OH Ames, IA formed from splitting ten of the 1990 San Germa´n—Cabo Rojo—Sabana Atascadero—El Paso de Robles (Paso census urbanized areas: Grande, PR Robles), CA Saratoga Springs, NY Aberdeen—Havre de Grace—Bel Air, Avondale, AZ South Lyon—Howell—Brighton, MI MD and Baltimore, MD (Baltimore, Bend, OR Temecula—Murrieta, CA MD) Blacksburg, VA The Woodlands, TX Camarillo, CA; Oxnard, CA; and Bowling Green, KY Tracy, CA Thousand Oaks, CA (Oxnard— Carson City, NV Turlock, CA Ventura, CA) Cleveland, TN Uniontown—Connellsville, PA Concord, CA; Livermore, CA; San Coeur d’Alene, ID Valdosta, GA Francisco—Oakland, CA; San Columbus, IN Wenatchee, WA Rafael—Novato, CA; and Vallejo, CA Corvallis, OR Westminster, MD (San Francisco—Oakland, CA) Dalton, GA Wildwood—North Wildwood—Cape Dover—Rochester, NH–ME and Danville, IL 5 May, NJ Portsmouth, NH–ME (Portsmouth— DeKalb, IL Winchester, VA Dover—Rochester, NH–ME) El Centro, CA Yauco, PR Gilroy—Morgan Hill, CA, and San Jose, Fairbanks, AK Zephyrhills, FL CA (San Jose, CA) Fajardo, PR 2. There are 17 urbanized areas Greenville, SC and Mauldin— Farmington, NM formed by merging 46 of the 1990 Simpsonville, SC (Greenville, SC) Flagstaff, AZ 6 Kansas City, MO–KS and Lee’s Summit, Florida—Barceloneta—Bajadero, PR census urbanized areas: MO (Kansas City, MO–KS) Fond du Lac, WI Baltimore, MD (Annapolis, MD and Gainesville, GA Baltimore, MD) Los Angeles—Long Beach—Santa Ana, Guayama, PR Boston, MA–NH—RI (Boston, MA; CA; Mission Viejo, CA; and Santa Haga˚tn˜ a, GU Brockton, MA; Lawrence—Haverhill, Clarita, CA (Los Angeles, CA) Harrisonburg, VA MA–NH; Lowell, MA–NH; and Marysville, WA and Seattle, WA Hazleton, PA Taunton, MA) (Seattle, WA) Hightstown, NJ Bridgeport—Stamford, CT–NY Norman, OK and Oklahoma City, OK Hinesville, GA (Bridgeport—Milford, CT; Norwalk, (Oklahoma City, OK) Hot Springs, AR CT; and Stamford, CT–NY) 4. One 1990 census urbanized area Jefferson City, MO Chicago, IL–IN (Aurora, IL; Chicago, IL– failed to qualify as a Census 2000 Jonesboro, AR Northwestern Indiana; Crystal Lake, urbanized area: Juana Dı´az, PR IL; Elgin, IL; and Joliet, IL) Cumberland, MD–WV Cincinnati OH–KY–IN (Cincinnati, OH– Kingston, NY 5. There are 44 urbanized areas with KY and Hamilton, OH) Lady Lake, FL other significant changes (unrelated to Lafayette—Louisville, CO Denton—Lewisville, TX (Denton, TX and Lewisville, TX) splits and mergers) to their 1990 census Lake Jackson—Angleton, TX boundaries: Lebanon, PA Hartford, CT (Bristol, CT; Hartford— Akron, OH: does not include a part of Leesburg—Eustis, FL Middletown, CT; and New Britain, the 1990 census urbanized area (UA), Lewiston, ID—WA CT) which was transferred to the Census McKinney, TX Indio—Cathedral City—Palm Springs, 2000 Cleveland, OH UA. Madera, CA CA (Indio—Coachella, CA and Palm Anchorage, AK: does not include the Mandeville—Covington, LA Springs, CA) Manteca, CA Miami, FL (Fort Lauderdale— separate Northwest Anchorage, AK Michigan City, IN–MI Hollywood—Pompano Beach, FL; urban cluster (UC), which was Middletown, NY Miami—Hialeah, FL; and West Palm defined from part of the 1990 census Monroe, MI Beach—Boca Raton—Delray Beach, UA. Morgantown, WV FL) Beloit, WI–IL: does not include a part of Morristown, TN Philadelphia, PA–NJ–DE–MD the 1990 census UA, which was Mount Vernon, WA (Philadelphia, PA–NJ, and transferred to the Census 2000 Murfreesboro, TN Wilmington, DE–NJ–MD–PA) Rockford, IL UA. Nampa, ID Port St. Lucie, FL (Fort Pierce, FL and Bridgeport—Stamford, CT–NY: contains Petaluma, CA Stuart, FL) part of the 1990 census New York, Poughkeepsie—Newburgh, NY NY–Northeastern New Jersey UA. 5 Danville, IL qualified as an urbanized area as a (Newburgh, NY and Poughkeepsie, Charlotte, NC–SC: contains part of the result of the 1980 census but failed to qualify as an NY) 1990 census Rock Hill, SC UA. urbanized area for the 1990 census, and therefore Providence, RI–MA (Fall River, MA–RI; Cincinnati, OH–KY–IN: contains part of is treated as a new urbanized area. Newport, RI; and Providence— the 1990 census Middletown, OH UA. 6 Flagstaff, AZ did not qualify as an urbanized area as a result of the 1990 census but was qualified Pawtucket, RI–MA) Cleveland, OH: contains parts of the as an urbanized area in 1996 based on the results Richmond, VA (Petersburg, VA and 1990 census Akron, OH and Lorain— of a special census taken in 1995. Richmond, VA) Elyria, OH UAs.
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Dayton, OH: contains part of the 1990 Philadelphia, PA–NJ–DE–MD: contains Albany, NY, was Albany— census Middletown, OH–UA. part (entire Pennsylvania portion) of Schenectady—Troy, NY. Decatur, AL: does not include the the 1990 census Trenton, NJ—PA UA. Allentown—Bethlehem, PA–NJ, was separate Hartselle, AL UC, which was Ponce, PR: does not include a part of the Allentown—Bethlehem—Easton, PA– defined from part of the 1990 census 1990 census UA, which was NJ. UA. transferred to the Census 2000 Yauco, Antioch, CA, was Antioch—Pittsburg, Fairfield, CA: does not include the PR UA. CA. separate Fairfield Southwest, CA UC, Rockford, IL: contains part of the 1990 Appleton, WI, was Appleton—Neenah, which was defined from part of the census Beloit, WI—IL UA. WI. 1990 census UA. Rock Hill, SC: does not include a part Athens-Clarke County, GA, was Athens, Gadsden, AL: does not include of the 1990 census UA, which was GA. significant portions of the 1990 transferred to the Census 2000 Auburn, AL, was Auburn—Opelika, AL. census UA, which did not qualify for Charlotte, NC—SC UA. Augusta-Richmond County, GA–SC, inclusion in the Census 2000 UA. Salt Lake City, UT: does not include a was Augusta, GA–SC. Houston, TX: contains part of the 1990 part of the 1990 census UA, which Barnstable Town, MA, was Hyannis, census Texas City, TX UA. was transferred to the Census 2000 MA. Jackson, MS: does not include the Ogden—Layton, UT UA. Benton Harbor—St. Joseph, MI, was separate Langford, MS, and Richland, San Francisco—Oakland, CA: contains Benton Harbor, MI. MS UCs, which were defined from part of the 1990 census San Jose, CA Binghamton, NY–PA, was Binghamton, parts of the 1990 census UA. UA. NY. Kissimmee, FL: contains part of the San Jose, CA: does not include a part of Bonita Springs—Naples, FL, was 1990 census Orlando, FL UA. the 1990 census UA, which was Naples, FL. Lewiston, ME: does not include the transferred to the Census 2000 San Brooksville, FL, was Spring Hill, FL. separate Lisbon Falls, ME UC, which Francisco—Oakland, CA UA. Buffalo, NY, was Buffalo—Niagara Falls, was defined from part of the 1990 Savannah, GA: does not include the NY. census UA, and additional significant separate Pooler, GA UC, which was Cape Coral, FL, was Fort Myers—Cape portions of the 1990 census UA, defined from part of the 1990 census Coral, FL. which did not qualify for inclusion in UA. Champaign, IL, was Champaign— the Census 2000 UA. Simi Valley, CA: does not include a part Urbana, IL. Lorain—Elyria, OH: does not include of the 1990 census UA, which was Charleston—North Charleston, SC, was part of the 1990 census UA, which transferred to the Census 2000 Charleston, SC. Charlotte, NC–SC, was Charlotte, NC. was transferred to the Census 2000 Thousand Oaks, CA UA. Chicago, IL–IN, was Chicago, IL– Cleveland, OH UA. Texas City, TX: does not include a part Northwestern Indiana. Miami, FL: does not include the of the 1990 census UA, which was Cincinnati, OH–KY–IN, was Cincinnati, separate Key Biscayne, FL UC, which transferred to the Census 2000 Houston, TX UA. OH–KY. was defined from part of the 1990 College Station–Bryan, TX, was Bryan– census UA. Thousand Oaks, CA: contains part of the 1990 census Simi Valley, CA UA. College Station, TX. Middletown, OH: does not include parts Concord, NC, was Kannapolis, NC. of the 1990 census UA, which were Trenton, NJ: does not include a part (entire Pennsylvania portion) of the Dallas–Fort Worth–Arlington, TX, was transferred to the Census 2000 Dallas–Fort Worth, TX. Cincinnati, OH–KY–IN, and Dayton, 1990 census UA, which was transferred to the Census 2000 Davenport, IA–IL, was Davenport–Rock OH UAs. Island–Moline, IA–IL. Monessen, PA: does not include the Philadelphia, PA–NJ–DE–MD UA. Tucson, AZ: does not include the Daytona Beach–Port Orange, FL, was separate California, PA UC, which Daytona Beach, FL. was defined from part of the 1990 separate Tucson South (Arizona State Prison Complex) AZ and Tucson Denver–Aurora, CO, was Denver, CO. census UA. Dubuque, IA–IL, was erroneously Southeast, AZ UCs, which were Montgomery, AL: does not include the shown in 1990 census electronic files defined from part of the 1990 census separate Prattville, AL UC, which was and some 1990 census reports as UA. defined from part of the 1990 census Dubuque, IA–IL–WI. (The UA was not UA. Utica, NY: does not include the separate Rome, NY UC, which was defined in Wisconsin.) New York—Newark, NY–NJ–CT: does Eugene, OR, was Eugene–Springfield, from part of the 1990 census UA not include a part of the 1990 census OR. (Utica—Rome, NY). UA, which was transferred to the Fargo, ND–MN, was Fargo–Moorhead, Census 2000 Bridgeport—Stamford, Vineland, NJ: does not include the separate Laurel Lake, NJ UC, which ND–MN. CT–NY UA. Gulfport–Biloxi, MS, was Biloxi– was defined from part of the 1990 Odessa, TX: does not include significant Gulfport, MS. census UA. portions of the 1990 census UA, Hagerstown, MD–WV–PA, was Virginia Beach, VA: does not include which did not qualify for inclusion in Hagerstown, MD–PA–WV. the separate Suffolk, VA UC, which the Census 2000 UA. Hemet, CA, was Hemet–San Jacinto, CA. Ogden—Layton, UT: contains part of the was defined from part of the 1990 Huntington, WV–KY–OH, was 1990 census Salt Lake City, UT UA. census UA (Norfolk—Virginia Huntington–Ashland, WV–KY–OH. Orlando, FL: does not include a part of Beach—Newport News, VA). Kailua (Honolulu County)–Kaneohe, HI, the 1990 census UA, which was Yauco, PR: contains part of the 1990 was Kailua, HI. transferred to the Census 2000 census Ponce, PR UA. Kennewick–Richland, WA, was Kissimmee, FL UA. 6. There are 72 urbanized areas with Richland–Kennewick, WA. Pascagoula, MS: does not include changes to their 1990 census names Lafayette, IN, was Lafayette–West significant portions of the 1990 (unrelated to mergers or splits): Lafayette, IN. census UA, which did not qualify for Aguadilla—Isabela—San Sebastian, PR, Lansing, MI, was Lansing–East Lansing, inclusion in the Census 2000 UA. was Aguadilla, PR. MI.
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Leominster–Fitchburg, MA, was counts relate to data reported for Census Urbanized area Population Fitchburg–Leominster, MA. 2000. Lewiston, ME, was Lewiston–Auburn, Casper, WY ...... 57,719 ME. Urbanized area Population Cedar Rapids, IA ...... 155,334 Little Rock, AR, was Little Rock–North Champaign, IL ...... 123,938 Little Rock, AR. Aberdeen—Havre de Grace— Charleston, WV ...... 182,991 Los Angeles–Long Beach–Santa Ana, Bel Air, MD ...... 174,598 Charleston—North Charleston, Abilene, TX ...... 107,041 SC ...... 423,410 CA, was Los Angeles, CA. Aguadilla—Isabela—San Charlotte, NC–SC ...... 758,927 McAllen, TX, was McAllen–Edinburg– Sebastia´n, PR ...... 299,086 Charlottesville, VA ...... 81,449 Mission, TX. Akron, OH ...... 570,215 Chattanooga, TN–GA ...... 343,509 Memphis, TN–MS–AR, was Memphis, Albany, GA ...... 95,450 Cheyenne, WY ...... 68,202 TN–AR–MS. Albany, NY ...... 558,947 Chicago, IL–IN ...... 8,307,904 Miami, FL, was Miami–Hialeah, FL. Albuquerque, NM ...... 598,191 Chico, CA ...... 89,221 Nashua, NH–MA, was Nashua, NH. Alexandria, LA ...... 78,504 Cincinnati, OH–KY–IN ...... 1,503,262 Nashville-Davidson, TN, was Nashville, Allentown—Bethlehem, PA–NJ 576,408 Clarksville, TN–KY ...... 121,775 TN. Alton, IL ...... 84,655 Cleveland, OH ...... 1,786,647 New Haven, CT, was New Haven– Altoona, PA ...... 82,520 Cleveland, TN ...... 58,192 Meriden, CT. Amarillo, TX ...... 179,312 Coeur d’Alene, ID ...... 74,800 College Station—Bryan, TX ..... 132,500 New York–Newark, NY–NJ–CT, was Ames, IA ...... 50,726 Anchorage, AK ...... 225,744 Colorado Springs, CO ...... 466,122 New York, NY–Northeastern New Anderson, IN ...... 97,038 Columbia, MO ...... 98,779 Jersey. Anderson, SC ...... 70,436 Columbia, SC ...... 420,537 North Port–Punta Gorda, FL, was Punta Ann Arbor, MI ...... 283,904 Columbus, GA–AL ...... 242,324 Gorda, FL. Anniston, AL ...... 75,840 Columbus, IN ...... 50,227 Norwich–New London, CT, was New Antioch, CA ...... 217,591 Columbus, OH ...... 1,133,193 London–Norwich, CT. Appleton, WI ...... 187,683 Concord, CA ...... 552,624 Ogden–Layton, UT, was Ogden, UT. Arecibo, PR ...... 145,643 Concord, NC ...... 115,057 Olympia–Lacey, WA, was Olympia, Asheville, NC ...... 221,570 Corpus Christi, TX ...... 293,925 WA. Atascadero—El Paso de Corvallis, OR ...... 58,229 Palm Bay–Melbourne, FL, was Robles (Paso Robles), CA .... 54,762 Dallas—Fort Worth—Arlington, Athens-Clarke County, GA ...... 106,482 TX ...... 4,145,659 Melbourne–Palm Bay, FL. Atlanta, GA ...... 3,499,840 Dalton, GA ...... 57,666 Pensacola, FL–AL, was Pensacola, FL. Atlantic City, NJ ...... 227,180 Danbury, CT–NY ...... 154,455 Portland, OR–WA, was Portland– Auburn, AL ...... 60,137 Danville, IL ...... 53,223 Vancouver, OR–WA. Augusta-Richmond County, Danville, VA ...... 50,902 Port St. Lucie, FL, was Fort Pierce, FL. GA–SC ...... 335,630 Davenport, IA–IL ...... 270,626 Providence, RI–MA, was Providence– Austin, TX ...... 901,920 Davis, CA ...... 66,022 Pawtucket, RI–MA. Avondale, AZ ...... 67,875 Dayton, OH ...... 703,444 Round Lake Beach–McHenry– Bakersfield, CA ...... 396,125 Daytona Beach—Port Orange, Grayslake, IL–WI, was Round Lake Baltimore, MD ...... 2,076,354 FL ...... 255,353 Beach–McHenry, IL–WI. Bangor, ME ...... 58,983 Decatur, AL ...... 52,315 Scranton, PA, was Scranton–Wilkes- Barnstable Town, MA ...... 243,667 Decatur, IL ...... 96,454 Baton Rouge, LA ...... 479,019 DeKalb, IL ...... 55,805 Barre, PA. Battle Creek, MI ...... 79,135 Deltona, FL ...... 147,713 Seaside–Monterey–Marina, CA, was Bay City, MI ...... 74,048 Denton—Lewisville, TX ...... 299,823 Seaside–Monterey, CA. Beaumont, TX ...... 139,304 Denver—Aurora, CO ...... 1,984,887 Sherman, TX, was Sherman–Denison, Bellingham, WA ...... 84,324 Des Moines, IA ...... 370,505 TX. Beloit, WI–IL ...... 56,462 Detroit, MI ...... 3,903,377 South Bend, IN–MI, was South Bend– Bend, OR ...... 57,525 Dothan, AL ...... 60,792 Mishawaka, IN–MI. Benton Harbor—St. Joseph, MI 61,745 Dover, DE ...... 65,044 Spokane, WA–ID, was Spokane, WA. Billings, MT ...... 100,317 Dover—Rochester, NH–ME ..... 80,456 Tampa–St. Petersburg, FL, was Tampa– Binghamton, NY–PA ...... 158,884 Dubuque, IA–IL ...... 65,251 St. Petersburg–Clearwater, FL. Birmingham, AL ...... 663,615 Duluth, MN–WI ...... 118,265 Trenton, NJ, was Trenton, NJ–PA. Bismarck, ND ...... 74,991 Durham, NC ...... 287,796 Blacksburg, VA ...... 57,236 Eau Claire, WI ...... 91,393 Utica, NY, was Utica–Rome, NY. Bloomington, IN ...... 92,456 El Centro, CA ...... 52,954 Vero Beach–Sebastian, FL, was Vero Bloomington—Normal, IL ...... 112,415 Elkhart, IN–MI ...... 131,226 Beach, FL. Boise City, ID ...... 272,625 Elmira, NY ...... 67,159 Victorville–Hesperia–Apple Valley, CA, Bonita Springs—Naples, FL ..... 221,251 El Paso, TX–NM ...... 674,801 was Hesperia–Apple Valley– Boston, MA–NH–RI ...... 4,032,484 Erie, PA ...... 194,804 Victorville, CA. Boulder, CO ...... 112,299 Eugene, OR ...... 224,049 Virginia Beach, VA, was Norfolk– Bowling Green, KY ...... 58,314 Evansville, IN–KY ...... 211,989 Virginia Beach–Newport News, VA. Bremerton, WA ...... 178,369 Fairbanks, AK ...... 51,926 Washington, DC–VA–MD, was Bridgeport—Stamford, CT–NY 888,890 Fairfield, CA ...... 112,446 Washington, DC–MD–VA. Bristol, TN—Bristol, VA ...... 58,472 Fajardo, PR ...... 78,595 Waterloo, IA, was Waterloo–Cedar Falls, Brooksville, FL ...... 102,193 Fargo, ND–MN ...... 142,477 IA. Brownsville, TX ...... 165,776 Farmington, NM ...... 53,294 Brunswick, GA ...... 51,653 Fayetteville, NC ...... 276,368 Weirton, WV–Steubenville, OH–PA, Buffalo, NY ...... 976,703 Fayetteville—Springdale, AR .... 172,585 was Steubenville–Weirton, OH–WV– Burlington, NC ...... 94,248 Flagstaff, AZ ...... 57,050 PA. Burlington, VT ...... 105,365 Flint, MI ...... 365,096 B. List of Urbanized Areas Camarillo, CA ...... 62,798 Florence, AL ...... 71,299 Canton, OH ...... 266,595 Florence, SC ...... 67,314 An alphabetical list of all qualifying Cape Coral, FL ...... 329,757 Florida—Barceloneta— urbanized areas follows. The population Carson City, NV ...... 58,263 Bajadero, PR ...... 68,811
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Urbanized area Population Urbanized area Population Urbanized area Population
Fond du Lac, WI ...... 50,058 Kingston, NY ...... 53,458 Morristown, TN ...... 54,368 Fort Collins, CO ...... 206,633 Kissimmee, FL ...... 186,667 Mount Vernon, WA ...... 51,174 Fort Smith, AR–OK ...... 106,470 Knoxville, TN ...... 419,830 Muncie, IN ...... 90,673 Fort Walton Beach, FL ...... 152,741 Kokomo, IN ...... 63,739 Murfreesboro, TN ...... 135,855 Fort Wayne, IN ...... 287,759 La Crosse, WIÐMN ...... 89,966 Muskegon, MI ...... 154,729 Frederick, MD ...... 119,144 Lady Lake, FL ...... 50,721 Myrtle Beach, SC ...... 122,984 Fredericksburg, VA ...... 97,102 Lafayette, IN ...... 125,738 Nampa, ID ...... 95,909 Fresno, CA ...... 554,923 Lafayette, LA ...... 178,079 Napa, CA ...... 79,867 Gadsden, AL ...... 61,709 Lafayette—Louisville, CO ...... 60,387 Nashua, NHÐMA ...... 197,155 Gainesville, FL ...... 159,508 Lake Charles, LA ...... 132,977 Nashville-Davidson, TN ...... 749,935 Gainesville, GA ...... 88,680 Lake Jackson—Angleton, TX ... 73,416 Newark, OH ...... 70,001 Galveston, TX ...... 54,770 Lakeland, FL ...... 199,487 New Bedford, MA ...... 146,730 Gastonia, NC ...... 141,407 Lancaster, PA ...... 323,554 New Haven, CT ...... 531,314 Gilroy—Morgan Hill, CA ...... 84,620 Lancaster—Palmdale, CA ...... 263,532 New Orleans, LA ...... 1,009,283 Glens Falls, NY ...... 57,627 Lansing, MI ...... 300,032 New York—Newark, NY–NJ– Goldsboro, NC ...... 57,915 Laredo, TX ...... 175,586 CT ...... 17,799,861 Grand Forks, ND–MN ...... 56,573 Las Cruces, NM ...... 104,186 Norman, OK ...... 86,478 Grand Junction, CO ...... 92,362 Las Vegas, NV ...... 1,314,357 North Port—Punta Gorda, FL ... 122,421 Grand Rapids, MI ...... 539,080 Lawrence, KS ...... 79,647 Norwich—New London, CT ...... 173,160 Great Falls, MT ...... 64,387 Lawton, OK ...... 89,556 Ocala, FL ...... 106,542 Greeley, CO ...... 93,879 Lebanon, PA ...... 63,681 Odessa, TX ...... 111,395 Green Bay, WI ...... 187,316 Leesburg—Eustis, FL ...... 97,497 Ogden—Layton, UT ...... 417,933 Greensboro, NC ...... 267,884 Lee’s Summit, MO ...... 55,285 Oklahoma City, OK ...... 747,003 Greenville, NC ...... 84,059 Leominster—Fitchburg, MA ...... 112,943 Olympia—Lacey, WA ...... 143,826 Greenville, SC ...... 302,194 Lewiston, IDÐWA ...... 50,317 Omaha, NEÐIA ...... 626,623 Guayama, PR ...... 77,755 Lewiston, ME ...... 50,567 Orlando, FL ...... 1,157,431 Gulfport—Biloxi, MS ...... 205,754 Lexington-Fayette, KY ...... 250,994 Oshkosh, WI ...... 71,070 Hagaûtn˜a, GU ...... 132,241 Lima, OH ...... 74,071 Owensboro, KY ...... 67,665 Hagerstown, MDÐWVÐPA ...... 120,326 Lincoln, NE ...... 226,582 Oxnard, CA ...... 337,591 Harlingen, TX ...... 110,770 Little Rock, AR ...... 360,331 Palm Bay—Melbourne, FL ...... 393,289 Harrisburg, PA ...... 362,782 Livermore, CA ...... 75,202 Panama City, FL ...... 132,419 Harrisonburg, VA ...... 52,647 Lodi, CA ...... 83,735 Parkersburg, WVÐOH ...... 85,605 Hartford, CT ...... 851,535 Logan, UT ...... 76,187 Pascagoula, MS ...... 54,190 Hattiesburg, MS ...... 61,465 Lompoc, CA ...... 55,667 Pensacola, FLÐAL ...... 323,783 Hazleton, PA ...... 51,746 Longmont, CO ...... 72,929 Peoria, IL ...... 247,172 Hemet, CA ...... 117,200 Longview, TX ...... 78,070 Petaluma, CA ...... 59,958 Hickory, NC ...... 187,808 Longview, WA—OR ...... 60,443 Philadelphia, PAÐNJÐDEÐMD .. 5,149,079 High Point, NC ...... 132,844 Lorain—Elyria, OH ...... 193,586 Phoenix—Mesa, AZ ...... 2,907,049 Hightstown, NJ ...... 69,977 Los Angeles—Long Beach— Pine Bluff, AR ...... 58,584 Hinesville, GA ...... 50,360 Santa Ana, CA ...... 11,789,487 Pittsburgh, PA ...... 1,753,136 Holland, MI ...... 91,795 Louisville, KYÐIN ...... 863,582 Pittsfield, MA ...... 52,772 Honolulu, HI ...... 718,182 Lubbock, TX ...... 202,225 Pocatello, ID ...... 62,498 Hot Springs, AR ...... 51,763 Lynchburg, VA ...... 98,714 Ponce, PR ...... 195,037 Houma, LA ...... 125,929 McAllen, TX ...... 523,144 Port Arthur, TX ...... 114,656 Houston, TX ...... 3,822,509 McKinney, TX ...... 54,525 Porterville, CA ...... 60,261 Huntington, WVÐKYÐOH ...... 177,550 Macon, GA ...... 135,170 Port Huron, MI ...... 86,486 Huntsville, AL ...... 213,253 Madera, CA ...... 58,027 Portland, ME ...... 188,080 Idaho Falls, ID ...... 66,973 Madison, WI ...... 329,533 Portland, ORÐWA ...... 1,583,138 Indianapolis, IN ...... 1,218,919 Manchester, NH ...... 143,549 Port St. Lucie, FL ...... 270,774 Indio—Cathedral City—Palm Mandeville—Covington, LA ...... 62,866 Portsmouth, NHÐME ...... 50,912 Springs, CA ...... 254,856 Mansfield, OH ...... 79,698 Pottstown, PA ...... 73,597 Iowa City, IA ...... 85,247 Manteca, CA ...... 51,176 Poughkeepsie-Newburgh, NY .. 351,982 Ithaca, NY ...... 53,528 Marysville, WA ...... 114,372 Prescott, AZ ...... 61,909 Jackson, MI ...... 88,050 Mauldin—Simpsonville, SC ...... 77,831 Providence, RIÐMA ...... 1,174,548 Jackson, MS ...... 292,637 Mayagu¬ez, PR ...... 119,350 Provo—Orem, UT ...... 303,680 Jackson, TN ...... 65,086 Medford, OR ...... 128,780 Pueblo, CO ...... 123,351 Jacksonville, FL ...... 882,295 Memphis, TNÐMSÐAR ...... 972,091 Racine, WI ...... 129,545 Jacksonville, NC ...... 95,514 Merced, CA ...... 110,483 Radcliff—Elizabethtown, KY ..... 64,504 Janesville, WI ...... 66,034 Miami, FL ...... 4,919,036 Raleigh, NC ...... 541,527 Jefferson City, MO ...... 53,714 Michigan City, INÐMI ...... 66,199 Rapid City, SD ...... 66,780 Johnson City, TN ...... 102,456 Middletown, NY ...... 50,071 Reading, PA ...... 240,264 Johnstown, PA ...... 76,113 Middletown, OH ...... 94,355 Redding, CA ...... 105,267 Jonesboro, AR ...... 51,804 Midland, TX ...... 99,221 Reno, NV ...... 303,689 Joplin, MO ...... 72,089 Milwaukee, WI ...... 1,308,913 Richmond, VA ...... 818,836 Juana Diaz, PR ...... 54,835 Minneapolis—St. Paul, MN ...... 2,388,593 Riverside—San Bernardino, CA 1,506,816 Kailua (Honolulu County)— Mission Viejo, CA ...... 533,015 Roanoke, VA ...... 197,442 Kaneohe, HI ...... 117,730 Missoula, MT ...... 69,491 Rochester, MN ...... 91,271 Kalamazoo, MI ...... 187,961 Mobile, AL ...... 317,605 Rochester, NY ...... 694,396 Kankakee, IL ...... 65,073 Modesto, CA ...... 310,945 Rockford, IL ...... 270,414 Kansas City, MOÐKS ...... 1,361,744 Monessen, PA ...... 56,508 Rock Hill, SC ...... 70,007 Kennewick—Richland, WA ...... 153,851 Monroe, LA ...... 113,818 Rocky Mount, NC ...... 61,657 Kenosha, WI ...... 110,942 Monroe, MI ...... 53,153 Rome, GA ...... 58,287 Killeen, TX ...... 167,976 Montgomery, AL ...... 196,892 Round Lake Beach— Kingsport, TNÐVA ...... 95,766 Morgantown, WV ...... 55,997 McHenry—Grayslake, IL–WI 226,848
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Urbanized area Population Urbanized area Population Urbanized area Population
Sacramento, CA ...... 1,393,498 Tallahassee, FL ...... 204,260 Youngstown, OHÐPA ...... 417,437 Saginaw, MI ...... 140,985 Tampa—St. Petersburg, FL ..... 2,062,339 Yuba City, CA ...... 97,645 St. Augustine, FL ...... 53,519 Temecula—Murrieta, CA ...... 229,810 Yuma, AZÐCA ...... 94,950 St. Charles, MD ...... 74,765 Temple, TX ...... 71,937 Zephyrhills, FL ...... 53,979 St. Cloud, MN ...... 91,305 Terre Haute, IN ...... 79,376 St. George, UT ...... 62,630 Texarkana, TX—Texarkana, St. Joseph, MOÐKS ...... 77,231 AR ...... 72,288 C. List of Urban Areas (Urbanized Areas St. Louis, MOÐIL ...... 2,077,662 Texas City, TX ...... 96,417 and Urban Clusters) Saipan, MP ...... 61,695 The Woodlands, TX ...... 89,445 Salem, OR ...... 207,229 Thousand Oaks, CA ...... 210,990 A complete list of the 3,638 qualifying Salinas, CA ...... 179,173 Titusville, FL ...... 52,922 urban areas, which includes both Salisbury, MDÐDE ...... 59,426 Toledo, OHÐMI ...... 503,008 urbanized areas and urban clusters, and Salt Lake City, UT ...... 887,650 Topeka, KS ...... 142,411 the list of central places will be San Angelo, TX ...... 87,969 Tracy, CA ...... 59,020 available from the Census Bureau’s San Antonio, TX ...... 1,327,554 Trenton, NJ ...... 268,472 San Diego, CA ...... 2,674,436 Tucson, AZ ...... 720,425 Urban and Rural Classification Web Sandusky, OH ...... 50,693 Tulsa, OK ...... 558,329 page at: http://www.census.gov/geo/ San Francisco—Oakland, CA .. 2,995,769 Turlock, CA ...... 69,507 www/ua/ua_2k.html. San Germa«n—Cabo Rojo— Tuscaloosa, AL ...... 116,888 Sabana Grande, PR ...... 112,939 Tyler, TX ...... 101,494 D. List of Major Airports San Jose, CA ...... 1,538,312 Uniontown—Connellsville, PA .. 58,442 San Juan, PR ...... 2,216,616 Utica, NY ...... 113,409 A list of major airports evaluated for San Luis Obispo, CA ...... 53,498 Vacaville, CA ...... 90,264 inclusion in urbanized areas and urban San Rafael—Novato, CA ...... 232,836 Valdosta, GA ...... 57,647 clusters will be available from the Santa Barbara, CA ...... 196,263 Vallejo, CA ...... 158,967 Census Bureau’s Urban and Rural Santa Clarita, CA ...... 170,481 Vero Beach—Sebastian, FL ..... 120,962 Classification Web page at: http:// Santa Cruz, CA ...... 157,348 Victoria, TX ...... 61,529 www.census.gov/geo/www/ua/ Santa Fe, NM ...... 80,337 Victorville—Hesperia—Apple ua_2k.html. Santa Maria, CA ...... 120,297 Valley, CA ...... 200,436 Santa Rosa, CA ...... 285,408 Vineland, NJ ...... 88,724 E. Geographic Products Sarasota—Bradenton, FL ...... 559,229 Virginia Beach, VA ...... 1,394,439 Saratoga Springs, NY ...... 51,172 Visalia, CA ...... 120,044 TIGER/Line files that contain the Savannah, GA ...... 208,886 Waco, TX ...... 153,198 boundaries, names, and codes of Scranton, PA ...... 385,237 Warner Robins, GA ...... 90,838 urbanized areas and urban clusters will Seaside—Monterey—Marina, Washington, DCÐVAÐMD ...... 3,933,920 be available from the Census Bureau’s CA ...... 125,503 Waterbury, CT ...... 189,026 Seattle, WA ...... 2,712,205 Waterloo, IA ...... 108,298 TIGER/Line Web page at: http:// Sheboygan, WI ...... 68,600 Watsonville, CA ...... 66,500 www.census.gov/geo/www/tiger/ Sherman, TX ...... 56,168 Wausau, WI ...... 68,221 index.html. Maps produced by the Shreveport, LA ...... 275,213 Weirton, WV—Steubenville, Census Bureau, showing the boundaries Simi Valley, CA ...... 112,345 OHÐPA ...... 73,710 and component geographic entities of Sioux City, IAÐNEÐSD ...... 106,119 Wenatchee, WA ...... 55,425 urbanized areas and urban clusters, will Sioux Falls, SD ...... 124,269 Westminster, MD ...... 65,034 Slidell, LA ...... 79,926 Wheeling, WVÐOH ...... 87,613 be available in late 2002. For South Bend, INÐMI ...... 276,498 Wichita, KS ...... 422,301 information updates concerning the South Lyon—Howell—Brighton, Wichita Falls, TX ...... 99,396 availability of maps, data users should MI ...... 106,139 Wildwood—North Wildwood— monitor the Census Bureau’s Urban and Spartanburg, SC ...... 145,058 Cape May, NJ ...... 52,550 Rural Classification Web page at: Spokane, WAÐID ...... 334,858 Williamsport, PA ...... 58,693 http://www.census.gov/geo/www/ua/ Springfield, IL ...... 153,516 Wilmington, NC ...... 161,149 ua_2k.html. Springfield, MAÐCT ...... 573,610 Winchester, VA ...... 53,559 Springfield, MO ...... 215,004 Winston-Salem, NC ...... 299,290 Dated: April 26, 2002. Springfield, OH ...... 89,684 Winter Haven, FL ...... 153,924 Charles Louis Kincannon, State College, PA ...... 71,301 Worcester, MAÐCT ...... 429,882 Director, Bureau of the Census. Stockton, CA ...... 313,392 Yakima, WA ...... 112,816 Sumter, SC ...... 64,320 Yauco, PR ...... 108,024 [FR Doc. 02–10805 Filed 4–30–02; 8:45 am] Syracuse, NY ...... 402,267 York, PA ...... 192,903 BILLING CODE 3510–07–P
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Part VIII
Department of Housing and Urban Development Funding Availability for the HUD Urban Scholars Fellowship Program; Notice
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DEPARTMENT OF HOUSING AND HUD will accept only one application (e) Effects of homeownership on low- URBAN DEVELOPMENT per applicant. and moderate-income households For Application Kits. An application 2. Housing Finance [Docket No. FR–4724–N–01] kit can be obtained by calling or writing (a) Institutional barriers to efficiency Notice of Funding Availability for the the Fellowship Office/HUD, TJ 2041, in the housing finance system HUD Urban Scholars Fellowship National Research Council, 2001 (b) Enabling the housing finance Wisconsin Avenue, NW, Washington, Program system to better serve low-income and DC 20007. Telephone number 202–334– minority borrowers more effectively AGENCY: Office of Policy Development 2872 and facsimile number 202–334– 3. Home Equity Conversion Mortgages and Research, HUD. 3419. The application kit can be • Housing Market Conditions ACTION: Notice of Funding Availability downloaded from the Internet at: http:/ 1. Housing Markets (NOFA). /national-academies.org/fellowships or (a) Factors affecting rents, home at http://www.hud.gov./grants. values, tenure, vacancy rates SUMMARY: This NOFA announces the For Further Information and (b) Market absorption of new units availability of approximately $550,000 Technical Assistance. You may call the (c) Construction activity in FY 2001 funds for the HUD Urban above number. You may also write to 2. Housing Stock Scholars program for FY 2002. the National Research Council (NRC) via (a) Durability of stock Purpose of the Program. To provide email at [email protected]. (b) Energy efficiency encouragement to new scholars to II. Amount Allocated (c) Factors determining rehabilitation undertake research now, and throughout and remodeling their careers, on research topics of Approximately $550,000 is being (d) Comparisons with stock in other interest to HUD. made available from the Department’s developed countries Available Funds. Approximately Fiscal Year 2001 appropriation under 3. Availability of Affordable Housing $550,000 in FY 2001 funding. this NOFA for the HUD Urban Scholars (a) Policy and program options in Fellowship Program. Eligible Applicants: Only Ph.D.s who tight or ‘‘soft’’ markets The maximum grant period is 15 have an academic appointment at an (b) Preservation of existing stock months. The performance period will • institution of higher education and have Equal Opportunity and Access to commence on the effective date of the Housing received their Ph.D. degrees no earlier grant agreement. than January 1, 1997. 1. Effectiveness of different models The maximum amount to be (including local initiatives) for Application Deadline. June 5, 2002. requested by and awarded to an Match. University support in terms of promoting Fair Housing objectives applicant is $55,000. In order to ensure 2. Discrimination in housing and course load reductions, indirect costs research efforts are focused on specific waived, space, etc. are required. lending Departmental priorities, HUD reserves (a) Methods to detect discrimination Additional Information the right to make awards for less than (b) Systemic patterns and practices the maximum amount or less than the • Paperwork Reduction Act Statement Homelessness amount requested in your application. 1. Strategies to combat homelessness The information collection III. Program Description; Eligible (a) Addressing chronic homelessness requirements contained in this NOFA Applicants; Eligible Activities (b) Causes of homelessness have been approved by the Office of (c) Helping families move from (A) Program Description. The Management and Budget (OMB), under transitional to permanent housing purposes of the HUD Urban Scholars the Paperwork Reduction Act of 1995 (d) Issues and responses to youth (44 U.S.C. 3501–3520) and assigned Program are to: (1) Fund research relevant to HUD homelessness OMB Control Number 2528–0175. An • Community and Economic agency may not conduct or sponsor, and priorities and issues; (2) Provide encouragement to new Development a person is not required to respond to, scholars to undertake research now, and 1. Create or expand business a collection of information unless the for the rest of their careers, on research (a) Meet the needs of underserved collection displays a valid control topics of interest to HUD; and inner city, older suburb, or rural areas number. (3) Have an impact on the academic (b) Expansion of access to capital (c) Joint ventures with faith-based or I. Application Due Date, Application context in which these scholars work so other community-based grassroots Kits, Further Information, and that this kind of research becomes organizations Technical Assistance highly valued. The research priorities for the HUD Urban Scholars Program are 1. Development of inner cities Application Due Date. Your designed to inform Federal problem- (a) Studies of reinvestment pressures completed application must be received solving and policy-making relating to (b) Theories of capital/land/market on or before June 5, 2002. HUD’s strategic goals for this year. failure that help to explain Address for Submitting Applications. Examples of topics addressing these depopulation or disinvestment Your completed application consists of priorities include but are not limited to: (c) Government policies or market an original signed application, which • Homeownership interventions that would alleviate these can be submitted in hard copy or 1. Homeownership patterns electronically. Submit your completed (a) Relative importance of factors in 3. Regionalism and growth application to the following address: tenure decisions management The Fellowship Office/HUD TJ 2041, (b) Estimation of private and social (a) The economic interdependence of National Research Council, 2001 benefits and costs of homeownership cities and suburbs Wisconsin Avenue, NW, Washington, (c) Role in employment, household (b) Rehabilitation and infill DC, 20007. Please mark on the envelope savings, and investment decisions development for your application that it is for the (d) Effects of demographics, macro- (c) Regional problem solving and HUD Urban Scholars Fellowship economic environment and government coalition building Program. policies on homeownership (d) Reinvestment in the urban core
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(e) Impact of community economic include, but are not limited to, your progress you have made towards development policies, programs, and salary for two summers, graduate completion of the research project and initiatives assistants to work on the project, up to the likelihood that you will complete it • Faith-based and Other Community- $2,500 per course for the cost of on time. based Partnerships employing a replacement for the (3) Mentors. You will be required to 1. Community development and course(s) your university releases you work with a mentor on your research community building from teaching, computer software, project. The mentor, who can be (a) Role of faith-based groups in low- survey development and administration, someone in your institution or income housing and community the purchase of data, travel expenses to elsewhere, should be a well-respected development efforts collect data or to make presentations at scholar in the area of your research (b) Faith-based and higher education meetings on your findings, transcription topic. The mentor will be expected to community building efforts services, compensation for interviews, provide you with advice and direction 2. Evaluation of college/community and no more than eight (8) percent of on substantive research issues. The partnerships and institutionalizing these the university’s indirect costs. mentor and the faculty monitor partnerships at colleges and universities described above can be, but do not have • Assisted Housing Programs IV. Application Selection Process to be, the same person. 1. Housing needs of the elderly and The competition and selection (4) Compliance with Fair Housing and persons with disabilities process for this program will be run on Civil Rights Laws. All applicants and (a) Availability HUD’s behalf by the National Research their subrecipients must comply with (b) Design and Quality, including Council (NRC). NRC will conduct two all Fair Housing and civil rights laws, Accessibility types of reviews: A threshold review to statutes, regulations and executive (c) Affordability determine your eligibility to apply; and orders as enumerated in 24 CFR (d) Linked services a technical review to rate your 5.105(a). In addition, the applicant and 2. Affordability of rental housing application based on the rating factors any subrecipients must comply with (a) Innovative partnerships or finance in this section. Title IX of the Education Amendments tools (A) Threshold Factors for Funding Act of 1972 (20 U.S.C. 1681 et seq). (b) Cost-benefit analyses of alternative Consideration. Under this threshold If you, the applicant— methods for providing housing review, your application can only be (a) Have been charged with a systemic assistance rated if the following standards are met: violation of the Fair Housing Act by the (c) Effectiveness of voucher programs (1) You are eligible to apply for this Secretary alleging ongoing (d) Evaluations of existing programs program, as defined in Section III(B) discrimination; • Strategies for helping families in above, and have provided a letter from (b) Are a defendant in a Fair Housing public and assisted housing make your department chair confirming this; Act lawsuit filed by the Department of progress toward self-sufficiency and (2) You have obtained a mentor and Justice alleging an ongoing pattern or become homeowners have included a letter from this person practice of discrimination; or • Colonias confirming this and describing his/her (c) Have received a letter of 1. How current policies determine the role in your research; and noncompliance findings under Title VI, kinds of housing available (3) Your institution has agreed to Section 504 or Section 109, NRC will 2. The perception of ‘‘community’’ in provide some support to you, above that not rate and rank your application colonias provided by this funding, as part of this under this NOFA if the charge, lawsuit 3. Evaluation of existing housing grant. or letter of findings has not been programs in colonias (B) Ineligible Activities. Your grant resolved to the satisfaction of the (B) Eligible Applicants. You must may not be used to pay for tuition, Department before the application have your Ph.D. and meet the following computer hardware, meals, relocation deadline. HUD’s decision whether a conditions: costs, or other costs not directly related charge, lawsuit, or a letter of findings (1) You must have an academic to your research project. Fellowship has been satisfactorily resolved will be appointment with an institution of funding cannot be used to substitute for based upon whether appropriate actions higher education. This means that you university funding. have been taken to address allegations must either be on a tenure track or be (C) Other Requirements. of ongoing discrimination in the on a term (teaching or research) (1) Support from your university. policies or practices involved in the appointment that will extend beyond Support from your university is charge, lawsuit or letter of findings. the 15-month duration of this required. Institutions will be required to (D) Conflicts of Interest. All fellowship; contribute, at a minimum, the following: individuals involved in rating and (2) You must have received your (a) Designating a faculty advisor to ranking this NOFA, including experts Ph.D. no earlier than January 1, 1997; monitor your progress on your research and consultants, must avoid conflicts of (3) It is realistic to believe that your project; interest or the appearance of conflicts. proposed research project can be (b) Office space, computer usage, etc.; Individuals involved in the rating and completed within the 15-month and ranking of applications must disclose to fellowship period; (c) Waived indirect costs above the HUD’s General Counsel or HUD’s Ethics (4) You must have support from your eight percent (8%) allowed to be Law Division the following information, institution as attested to in the letter covered by this fellowship. In addition, if applicable: how the selection or non- described below in Section V (C); and your application will be viewed more selection of any applicant under this (5) You must provide appropriate favorably if your institution agrees to NOFA will affect the individual’s written evidence that you are lawfully reduce your course load by at least one financial interests, as provided in 18 admitted for permanent residence in the course per term or semester, but to U.S.C. 208; or, how the application United States, if you are not a citizen. continue paying you your full salary. process involves a party with whom the (C) Eligible Activities. Your grant must (2) Progress reporting. You will be individual has a covered relationship support costs related to completion of required to submit a report, halfway under 5 CFR 2635.502. The individual your research project. Eligible costs through your fellowship, on the must disclose this information prior to
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participating in any matter regarding period) will be determined to be less awarded all available funds. However, this NOFA. If you have questions feasible of completion within the as noted in Section II, HUD reserves the regarding these provisions, or if you allowed time frame. For example, if you right to make awards for less than the have questions concerning a conflict of propose a methodology based on amount requested in your application. interest. you may call the Office of information that may not be publicly After all application selections have General Counsel, Ethics Law Division, available until after the end of the grant been made, HUD may require that you at 202–708–3815. period (e.g., census information), or a participate in negotiations to determine (E) Factors for Award Used to data collection plan that will take longer the specific terms of the fellowship and Evaluate and Rate Applications. The than the time you have allowed for it, the grant budget. In cases where HUD factors for rating and ranking applicants, you will get a lower score than if you cannot successfully complete and maximum points for each factor, are have presented a time line and negotiations, or you fail to provide HUD provided below. The maximum number methodology that show evidence that with requested information, an award of points for this program is 100. the research project can be completed will not be made. In such instances, Rating Factor 1: Capacity to do the within the grant period. HUD may elect to offer an award to the Research (15 points). In reviewing this (c) Quality of the Mentoring Plan (5 next highest-ranking applicant, and factor, NRC will determine the extent to points). In reviewing this factor, NRC proceed with negotiations with that which your training, past employment, will determine the appropriateness of applicant. and past written work, such as your the person chosen to be your mentor (in dissertation, teaching, coursework, and terms of his/her previous work (e.g., V. Application Submission previously completed research papers research, publications, presentations, Requirements that were accepted for presentation or standing in the research community, You should include an original or publication, lay a foundation for this and availability) and the role the mentor electronic copy of your application. proposed work. has agreed to play in your project. The Please note the page limits for some of Rating Factor 2: Need for the Research higher the time commitment the mentor the items listed below and do not (20 points). In reviewing this factor, makes to you, the higher the points you exceed them. NRC will determine the extent to which will receive. The application kit made available by your proposed project undertakes Rating Factor 4: Commitment of the HUD through NRC will require the research on an area not covered by University (10 points). In reviewing this following items: previous research or proposes to look at factor, NRC will determine the extent of (A) SF–424 a previously studied research topic in a the commitment of your university, (B) SF–424–B new and different way. Reviewers will beyond that required in Section IV (C) SF–424–C look at the clarity and compellingness of (C)(1). The quality of your institution’s (D) Evidence of your eligibility, the case the applicant makes for this commitment, in terms of its furthering including: project in the context of the existing your research project, will also be (1) A Ph.D. received on or after literature and knowledge base for that evaluated under this factor. For January 1, 1997; topic. example, your university could propose (2) A letter from your faculty Rating Factor 3: Approach (40 total to cover the cost of a graduate assistant chairperson, including the university’s points). to work on your research project in name, department, mailing address, (a) Appropriateness of your order to demonstrate its commitment telephone and facsimile numbers, Methodology and Approach to the beyond what is required of it. The larger attesting to your appointment to a Research Topic (25 points). In reviewing the commitment, translated into dollar tenure track or position extending this factor, NRC will determine the terms, the higher the points. Full points beyond the 15-month duration of this extent to which your research design may only be received if your institution fellowship and describing the support and methodology are likely to produce agrees to reduce your course load by one provided by the institution; data and information that will course a semester or term and continue (E) Response to Rating Factor 1, your successfully answer your research paying you your full salary. capacity to do the research, including: hypotheses. NRC will also evaluate the Rating Factor 5: Relevance of Your (1) Your graduate and post-graduate extent to which the methodology you Research to HUD’s Strategic Goals (15 educational background. propose to use is sound and generally points). In reviewing this factor, NRC (2) A one-page abstract of your accepted by the relevant research will determine the extent to which your dissertation. community. Reviewers will be looking proposed research project will produce (3) A list of your publications: books, at the extent to which you use standard policy-relevant information that is refereed journal articles, chapters methodological practices in line with directly related to one or more of the contributed to books, articles in research already completed or existing strategic goals listed above (i.e., the published proceedings, and any other publications in the field related to your research could improve the articles. research questions. effectiveness of HUD’s programs and (4) A list of text and poster (b) Plan for Timely Completion of policies and the ability to achieve the presentations made during the last five Your Research Project (10 points). In stated goals). The less directly related to years. reviewing this factor, NRC will one of these goals your research project (5) Grants and awards received during determine the extent to which your is, the fewer points you will receive. For the last five years. research design and methodology and example, a study of minorities’ housing (6) Teaching load during the last five plan for completion of your research choice decisions would have high years. project can feasibly be completed within relevance to HUD’s strategic goals; a (7) Two letters of reference. the 15-month fellowship period. study of transportation inequities would (F) Response to Rating Factor 2, need Applications that propose extremely have medium relevance; and a study of for the research, including, complex and time-consuming data the effects of global warming on urban A succinct description of how your collection efforts (e.g., major development would have low relevance. proposal is non-duplicative of longitudinal studies or a very large (F) Selections. HUD will fund previously published research, and how number of site visits within the grant applications in rank order, until it has it supports HUD’s research agenda.
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(G) Response to Rating Factor 3, a Saturday, Sunday, or Federal holiday, branches of the Federal government in description of your work plan, your correction must be received by connection with a specific contract, including; HUD on the next day that is not a grant, or loan. You are required to (1) A one-page abstract of your Saturday, Sunday, or Federal holiday.) certify, using the certification found at research project. Appendix A to 24 CFR part 87, that you (2) A narrative of the proposed VII. Environmental Requirements will not and have not used appropriated research, not to exceed 10 double- This NOFA does not direct, provide funds for any prohibited lobbying spaced typed pages. for assistance or loan and mortgage activities. In addition, you must (3) A working bibliography of your insurance for, or otherwise govern or disclose, using Standard Form LLL proposed project. regulate, real property acquisition, ‘‘Disclosure of Lobbying Activities,’’ any (4) An annotated bibliography, e.g., a disposition, leasing, rehabilitation, funds, other than federally appropriated two- or three-sentence annotation for alteration, demolition, or new funds, that will be or have been used to ten to twelve key sources in your construction, or establish, revise or influence Federal employees, members working bibliography. provide for standards for construction or of Congress, and congressional staff (5) A letter from your mentor that construction materials, manufactured regarding specific grants or contracts. includes his/her address, telephone and housing, or occupancy. Accordingly, Federally recognized Indian tribes and facsimile number and email address, under 24 CFR 50.19(C)(1), this NOFA is tribally designated housing entities states his/her qualifications and categorically excluded from (TDHEs) established by federally availability to be your mentor, and environmental review under the recognized Indian tribes as a result of describes his/her proposed role in your National Environmental Policy Act (42 the exercise of the tribe’s sovereign research project. U.S.C. 4321). power are excluded from coverage of the (H) Certifications. These forms must Byrd Amendment, but State-recognized be signed by the applicant and can be VIII. Other Matters Indian tribes and TDHEs established downloaded from the HUD web site at (A) Federalism, Executive Order 13132 under State law must comply with this www.hud.gov. requirement. (1) HUD–2992, Certification regarding This notice does not have federalism (D) Section 102 of the HUD Reform debarment and suspension pursuant to implication and does not impose Act, Documentation and Public Access 24 CFR part 24. substantial direct compliance costs on Requirements. Section 102 of the (2) HUD–50071, Disclosure of State and local governments or preempt Department of Housing and Urban lobbying pursuant to 24 CFR part 87. State law within the meaning of Development Reform Act of 1989 (42 (3) HUD–50070, Certification of Drug- Executive Order 13132 (entitled U.S.C. 3545) (HUD Reform Act) and the Free Workplace, pursuant to 24 CFR ‘‘Federalism’’). regulations codified in 24 CFR part 4, 24.600 et seq. (B) Conducting Business In subpart A, contain a number of Accordance With Core Values and provisions that are designed to ensure VI. Corrections to Deficient Ethical Standards. Entities subject to 24 Applications greater accountability and integrity in CFR parts 84 and 85 (most non-profit the provision of certain types of After the application due date, HUD organizations and State, local and tribal assistance administered by HUD. On may not, consistent with its regulations governments or government agencies or January 14, 1992, HUD published a in 24 CFR part 4, subpart B, consider instrumentalities who receive Federal notice that also provides information on any unsolicited information you, the awards of financial assistance) are the implementation of Section 102 (57 applicant, may want to provide. HUD required to develop and maintain a FR 1942). The documentation, public may contact you to clarify an item in written code of conduct (see §§ 84.42 access, and disclosure requirements of your application or to correct technical and 85.36(b)(3)). Consistent with Section 102 apply to assistance awarded deficiencies. HUD may not seek regulations governing specific programs, under this NOFA as follows: clarification of items or responses that your university’s code of conduct must: (1) Documentation and public access improve the substantive quality of your prohibit real and apparent conflicts of requirements. HUD will ensure that response to any rating factors. In order interest that may arise among officers, documentation and other information not to unreasonably exclude employees, or agents; prohibit the regarding each application submitted applications from being rated and solicitation and acceptance of gifts or pursuant to this NOFA are sufficient to ranked, HUD may contact applicants to gratuities by your officers, employees indicate the basis upon which ensure proper completion of the and agents for their personal benefit in assistance was provided or denied. This application and will do so on a uniform excess of minimal value; and, outline material, including any letters of basis for all applicants. Examples of administrative and disciplinary actions support, will be made available for curable (correctable) technical available to remedy violations of such public inspection for a five-year period deficiencies include failure to submit standards. If awarded assistance under beginning not less than 30 days after the the proper certifications or failure to this NOFA, you will be required, prior award of the assistance. Material will be submit an application that contains an to entering into a grant agreement with made available in accordance with the original signature by an authorized HUD, to submit a copy of your Freedom of Information Act (5 U.S.C. official. In each case, HUD will notify university’s code of conduct. 552) and HUD’s implementing you in writing by describing the (C) Prohibition Against Lobbying regulations (24 CFR part 15). clarification or technical deficiency. Activities. You, the applicant, are (2) Debriefing. Beginning not less than HUD will notify applicants by facsimile subject to the provisions of Section 319 30 days after the awards for assistance or by USPS, return receipt requested. of the Department of Interior and are announced in the above-mentioned Clarifications or corrections of technical Related Agencies Appropriation Act for Federal Register notice and for at least deficiencies in accordance with the Fiscal Year 1991 (31 U.S.C. 1352) (the 120 days after awards for assistance are information provided by HUD must be Byrd Amendment), which prohibits announced, HUD will provide a submitted within 14 calendar days of recipients of Federal contracts, grants, debriefing to any applicant requesting the date of receipt of the HUD or loans from using appropriated funds one on their application. All debriefing notification. (If the due date falls on a for lobbying the executive or legislative requests must be made in writing or by
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email by the authorized official whose (4) Publication of Recipients of HUD applicant an unfair competitive signature appears on the SF–424 or his Funding. HUD’s regulations at 24 CFR advantage. Persons who apply for or her successor in office, and submitted part 4 provide that HUD will publish a assistance in this competition should to the organization identified in the notice in the Federal Register to notify confine their inquiries to the subject section entitled ‘‘For Further the public of all decisions made by the areas permitted under 24 CFR part 4. Information and Technical Assistance.’’ Department to provide: Applicants or employees who have (i) Assistance subject to Section 102(a) Information provided during a ethics related questions should contact debriefing will include, at a minimum, of the HUD Reform Act; and/or (ii) Assistance provided through the HUD Ethics Law Division at 202– the final score you received for each grants or cooperative agreements on a 708–3815. (This is not a toll-free rating factor, final evaluator comments discretionary (non-formula, non- number.) HUD employees who have for each rating factor, and the final demand) basis, but that is not provided specific program questions should assessment indicating the basis upon on the basis of a competition. contact the appropriate field office which assistance was provided or (E) Section 103 of the HUD Reform counsel or Headquarters counsel for the denied. Act. HUD’s regulations implementing program to which the question pertains. The Catalogue of Federal Domestic (3) Disclosures. HUD will make Section 103 of the Department of Assistance number is: 14.506. available to the public for five years all Housing and Urban Development applicant disclosure reports (HUD Form Reform Act of 1989 (42 U.S.C. 3537a), IX. Authority 2880) submitted in connection with this codified in 24 CFR part 4, subpart B, NOFA. Update reports (also reported on apply to this funding competition. The The authority for this program is HUD Form 2880) will be made available regulations continue to apply until the found in Title V of the Housing and announcement of the selection of along with the applicant disclosure Urban Development Act of 1970 (Pub. L. successful applicants. HUD employees 91–609). reports, but in no case for a period of involved in the review of applications Dated: April 25, 2002. less than three years. All reports, both and in the making of funding decisions applicant disclosures and updates, will are limited by the regulations from Lawrence L. Thompson, be made available in accordance with providing advance information to any General Deputy Assistant Secretary for Policy the Freedom of Information Act (5 person (other than an authorized Development and Research. U.S.C. 552) and HUD’s implementing employee of HUD) concerning funding [FR Doc. 02–10726 Filed 4–30–02; 8:45 am] regulations (24 CFR part 5). decisions or from otherwise giving any BILLING CODE 4210–62–P
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Reader Aids Federal Register Vol. 67, No. 84 Wednesday, May 1, 2002
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REMINDERS Sunscreen products (OTC); comments due by 5-8-02; implementation; comments The items in this list were final monograph; published 4-8-02 [FR 02- due by 5-7-02; published 3- editorially compiled as an aid published 5-2-02 08437] 15-02 [FR 02-06091] to Federal Register users. INTERIOR DEPARTMENT COMMERCE DEPARTMENT DEFENSE DEPARTMENT Inclusion or exclusion from Surface Mining Reclamation National Oceanic and Army Department this list has no legal and Enforcement Office Atmospheric Administration Corps Regulatory Program significance. Permanent program and Fishery conservation and and new Historic abandoned mine land management: Preservation Advisory reclamation plan Atlantic highly migratory Council regulations; RULES GOING INTO species— EFFECT MAY 1, 2002 submissions: comments due by 5-7-02; West Virginia; published 5- Pelagic longline published 3-8-02 [FR 02- 1-02 management; comments 05653] AGRICULTURE due by 5-10-02; DEFENSE DEPARTMENT DEPARTMENT JUSTICE DEPARTMENT published 4-10-02 [FR Agricultural Marketing Immigration and 02-08689] Acquisition regulations: Service Naturalization Service Caribbean, Gulf of Mexico, Multiple award contracts; Cotton research and Immigration: and South Atlantic competition requirements promotion: User fee increase; published fisheries— for purchase of services; Sign-up procedures; 4-1-02 Gulf of Mexico and South comments due by 5-6-02; published 4-30-02 PENSION BENEFIT Atlantic coastal published 4-1-02 [FR 02- Milk marketing orders: GUARANTY CORPORATION migratory pelagic 07785] Upper Midwest; published 4- Single-employer plans: resources; comments DEFENSE DEPARTMENT 22-02 due by 5-9-02; Allocation of assets— Federal Acquisition Regulation AGRICULTURE published 3-25-02 [FR (FAR): DEPARTMENT Interest assumptions for 02-07128] Federal and federally-funded Animal and Plant Health valuing and paying Northeastern United States construction projects; Inspection Service benefits; published 4- fisheries— 15-02 government contractors’ Plant-related quarantine, Atlantic hagfish; labor relations; open TRANSPORTATION domestic: comments due by 5-6- competition and DEPARTMENT Karnal bunt; published 5-1- 02; published 4-5-02 government neutrality 02 Federal Aviation [FR 02-08335] preservation; comments COMMERCE DEPARTMENT Administration COMMERCE DEPARTMENT due by 5-6-02; published National Oceanic and Airworthiness directives: National Oceanic and 3-7-02 [FR 02-05385] Atmospheric Administration Boeing; published 4-26-02 Atmospheric Administration ENERGY DEPARTMENT Fishery conservation and Fishery conservation and General Electric Co.; Personnel Security Assistance management: management: published 3-27-02 Program; security police Alaska; fisheries of West Coast States and officer positions; eligibIlitiy Exclusive Economic Western Pacific COMMENTS DUE NEXT requirements; comments Zone— fisheries— due by 5-6-02; published 4- Bering Sea and Aleutian WEEK West Coast salmon; 4-02 [FR 02-08134] Islands groundfish and comments due by 5-9- Gulf of Alaska AGRICULTURE 02; published 4-24-02 ENVIRONMENTAL groundfish; Steller sea DEPARTMENT [FR 02-10083] PROTECTION AGENCY lion protection Agricultural Marketing COMMERCE DEPARTMENT Air pollutants, hazardous; measures; amendment Service National Oceanic and national emission standards: and correction; Cotton classing, testing, and Atmospheric Administration Pesticide active ingredient published 5-1-02 standards: Marine mammals: production; comments due Groundfish; reporting and Classification services to Incidental taking— by 5-10-02; published 4- recordkeeping growers; 2002 user fees; Gulf of Mexico; oil and 10-02 [FR 02-07223] requirements; published comments due by 5-6-02; gas structure removal ENVIRONMENTAL 5-2-02 published 4-19-02 [FR 02- activities; bottlenose PROTECTION AGENCY Northeastern United States 09784] and spotted dolphins; Air pollutants, hazardous; fisheries— AGRICULTURE comments due by 5-6- national emission standards: Northeast multispecies; DEPARTMENT 02; published 4-19-02 Portland cement published 4-29-02 Agricultural Research [FR 02-09519] manufacturing industry; FEDERAL Service CONSUMER PRODUCT comments due by 5-6-02; COMMUNICATIONS National Arboretum; schedule SAFETY COMMISSION published 4-5-02 [FR 02- COMMISSION of fees; comments due by Poison prevention packaging: 08161] Radio stations; table of 5-10-02; published 4-10-02 Child-resistant packaging assignments: ENVIRONMENTAL [FR 02-08589] requirements— PROTECTION AGENCY Pennsylvania; published 5-1- Hormone replacement 02 AGRICULTURE Air pollutants, hazardous; DEPARTMENT therapy products national emission standards: FEDERAL EMERGENCY containing progestogen Rural Utilities Service MANAGEMENT AGENCY and estrogen Portland cement National Flood Insurance Electric loans: substances; exemption; manufacturing industry; Program: Useful life of facility comments due by 5-6- comments due by 5-6-02; Increased rates for determination; comments 02; published 2-19-02 published 4-5-02 [FR 02- coverage; published 2-27- due by 5-9-02; published [FR 02-03999] 08162] 02 4-9-02 [FR 02-08484] COURT SERVICES AND ENVIRONMENTAL HEALTH AND HUMAN CHEMICAL SAFETY AND OFFENDER SUPERVISION PROTECTION AGENCY SERVICES DEPARTMENT HAZARD INVESTIGATION AGENCY FOR THE Air pollutants, hazardous; Food and Drug BOARD DISTRICT OF COLUMBIA national emission standards: Administration Government in the Sunshine Freedom of Information Act, Vegetable oil production; Human drugs: Act; implementation; Privacy Act, et al.; solvent extraction;
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comments due by 5-6-02; ENVIRONMENTAL GENERAL SERVICES Administrative wage published 4-5-02 [FR 02- PROTECTION AGENCY ADMINISTRATION garnishment; comments 05862] Air quality implementation Federal Acquisition Regulation due by 5-7-02; published ENVIRONMENTAL plans; approval and (FAR): 3-8-02 [FR 02-05524] PROTECTION AGENCY promulgation; various Federal and federally-funded INTERIOR DEPARTMENT Air pollutants, hazardous; States: construction projects; Fish and Wildlife Service national emission standards: California; comments due by government contractors’ Migratory bird hunting: Vegetable oil production; 5-8-02; published 4-8-02 labor relations; open Alaska; spring/summer solvent extraction; [FR 02-08287] competition and migratory bird subsistence comments due by 5-6-02; ENVIRONMENTAL government neutrality harvest; comments due by published 4-5-02 [FR 02- PROTECTION AGENCY preservation; comments 5-8-02; published 4-8-02 due by 5-6-02; published 05863] Air quality implementation [FR 02-08384] 3-7-02 [FR 02-05385] Air programs; approval and plans; approval and NATIONAL AERONAUTICS promulgation; State plans promulgation; various HEALTH AND HUMAN AND SPACE for designated facilities and States: SERVICES DEPARTMENT ADMINISTRATION pollutants: California; comments due by Centers for Medicare & Federal Acquisition Regulation Puerto Rico; comments due 5-8-02; published 4-8-02 Medicaid Services (FAR): by 5-10-02; published 4- [FR 02-08288] Medicare: Federal and federally-funded 10-02 [FR 02-08686] South Carolina; comments Medicare-Endorsed construction projects; ENVIRONMENTAL due by 5-10-02; published Prescription Drug Card government contractors’ PROTECTION AGENCY 4-10-02 [FR 02-08685] Assistance Initiative labor relations; open Air quality implementation competition and Water supply: Correction; comments due plans; approval and government neutrality National primary and by 5-6-02; published 3- promulgation; various 15-02 [FR C2-05129] preservation; comments States: secondary drinking water due by 5-6-02; published Medicare-endorsed Alabama; comments due by regulations— 3-7-02 [FR 02-05385] Aeromonas hydrophilia in prescription drug card 5-10-02; published 4-10- assistance initiative INTERIOR DEPARTMENT 02 [FR 02-08531] drinking water National Indian Gaming distribution systems; Cross-reference; ENVIRONMENTAL Commission analytical method comments due by 5-6- PROTECTION AGENCY Electronic or electromechanical approval; comments 02; published 3-6-02 facsimile; games similar to Air quality implementation due by 5-6-02; [FR 02-05129] bingo; and electronic, plans; approval and published 3-7-02 [FR Medicare-endorsed computer, or other promulgation; various 02-05447] prescription drug discount technologic aids to Class II States: card assistance initiative FEDERAL games; definitions; Alabama; comments due by for State sponsors COMMUNICATIONS comments due by 5-6-02; 5-10-02; published 4-10- Cross-reference; 02 [FR 02-08532] COMMISSION published 4-29-02 [FR 02- Common carrier services: comments due by 5-6- 10396] ENVIRONMENTAL 02; published 3-6-02 Numbering resource PROTECTION AGENCY [FR 02-05130] POSTAL SERVICE Air quality implementation optimization; comments Domestic Mail Manual: due by 5-6-02; published State Children’s Health plans; approval and Insurance Program: Automated flats; new promulgation; various 4-5-02 [FR 02-08250] specifications; comments Allotments and grants to States: Digital television stations; table due by 5-6-02; published States— California; comments due by of assignments: 4-17-02 [FR 02-09306] Prenatal care for unborn 5-8-02; published 4-8-02 Virginia; comments due by STATE DEPARTMENT children; eligibility; [FR 02-08293] 5-9-02; published 4-9-02 Visas; nonimmigrant [FR 02-08497] comments due by 5-6- ENVIRONMENTAL 02; published 3-5-02 documentation: PROTECTION AGENCY Radio broadcasting: [FR 02-05217] Automatic visa revalidation; Air quality implementation World Radiocommunication comments due by 5-6-02; HEALTH AND HUMAN plans; approval and Conferences; frequency published 3-7-02 [FR 02- SERVICES DEPARTMENT promulgation; various bands below 28000 kHz; 05325] Food and Drug States: comments due by 5-8-02; TRANSPORTATION Administration California; comments due by published 4-8-02 [FR 02- DEPARTMENT 5-8-02; published 4-8-02 07727] Medical devices: Coast Guard [FR 02-08294] Radio services, special: General hospital and Commercial vessels; liferaft ENVIRONMENTAL Private land mobile radio personal use devices— servicing intervals; PROTECTION AGENCY services— Medical washer and comments due by 5-6-02; Air quality implementation Public safety medical washer- published 3-5-02 [FR 02- plans; approval and communications disinfector; classification; 05211] promulgation; various improvement in 800 comments due by 5-8- Ports and waterways safety: States: MHz band, and 900 02; published 2-7-02 Fore River Channel, California; comments due by MHz industrial/land [FR 02-03019] Weymouth, MA; safety 5-8-02; published 4-8-02 transportation and Orthopedic devices— zone; comments due by [FR 02-08291] business port channels Resorbable calcium salt 5-10-02; published 4-10- ENVIRONMENTAL consolidation; comments bone void filler device; 02 [FR 02-08591] PROTECTION AGENCY due by 5-6-02; classification; comments Naval Vessel Protection Air quality implementation published 4-5-02 [FR due by 5-8-02; Zones; comments due by plans; approval and 02-08304] published 2-7-02 [FR 5-6-02; published 3-20-02 promulgation; various Radio stations; table of 02-03017] [FR 02-06766] States: assignments: HOUSING AND URBAN TRANSPORTATION California; comments due by Louisiana; comments due by DEVELOPMENT DEPARTMENT 5-8-02; published 4-8-02 5-6-02; published 4-5-02 DEPARTMENT International charter flights; [FR 02-08292] [FR 02-08196] Federal claims collection: approval standards;
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rulemaking petition; due by 5-8-02; published session of Congress which located in Harlem, Montana, comments due by 5-6-02; 2-7-02 [FR 02-02874] have become Federal laws. It as the ‘‘Francis Bardanouve published 3-21-02 [FR 02- Light trucks; 2005-2010 may be used in conjunction United States Post Office 06820] model years; correction; with ‘‘PLUS’’ (Public Laws Building’’. (Apr. 18, 2002; 116 TRANSPORTATION comments due by 5-8-02; Update Service) on 202–523– Stat. 127) DEPARTMENT published 4-22-02 [FR 02- 6641. This list is also available online at http:// H.R. 2910/P.L. 107–165 Federal Aviation 09736] www.nara.gov/fedreg/ Administration Motor vehicle safety To designate the facility of the standards: plawcurr.html. Air carrier certification and United States Postal Service Tires; performance operations: The text of laws is not located at 3131 South Crater requirements; comments Road in Petersburg, Virginia, Light-sport aircraft; published in the Federal due by 5-6-02; published as the ‘‘Norman Sisisky Post comments due by 5-6-02; Register but may be ordered 3-5-02 [FR 02-05151] Office Building’’. (Apr. 18, published 2-5-02 [FR 02- in ‘‘slip law’’ (individual Correction; comments due pamphlet) form from the 2002; 116 Stat. 128) 02302] by 5-6-02; published 4- Airworthiness directives: Superintendent of Documents, H.R. 3072/P.L. 107–166 3-02 [FR 02-08078] U.S. Government Printing de Havilland Inc.; comments TREASURY DEPARTMENT Office, Washington, DC 20402 To designate the facility of the due by 5-10-02; published Alcohol, Tobacco and (phone, 202–512–1808). The United States Postal Service 3-28-02 [FR 02-07417] Firearms Bureau text will also be made located at 125 Main Street in Air Tractor, Inc.; comments Alcohol, tobacco, and other available on the Internet from Forest City, North Carolina, as due by 5-10-02; published excise taxes: GPO Access at http:// the ‘‘Vernon Tarlton Post 3-11-02 [FR 02-05690] Firearms disabilities for www.access.gpo.gov/nara/ Office Building’’. (Apr. 18, Bombardier; comments due nonimmigrant aliens and nara005.html. Some laws may 2002; 116 Stat. 129) by 5-6-02; published 4-4- import permit not yet be available. 02 [FR 02-08174] requirements for H.R. 3379/P.L. 107–167 H.R. 1432/P.L. 107–160 Dornier; comments due by nonimmigrant aliens To designate the facility of the 5-6-02; published 4-5-02 bringing firearms and To designate the facility of the United States Postal Service [FR 02-08285] ammunition into U.S.; United States Postal Service located at 375 Carlls Path in located at 3698 Inner Fokker; comments due by comments due by 5-6-02; Deer Park, New York, as the Perimeter Road in Valdosta, 5-6-02; published 4-5-02 published 2-5-02 [FR 02- ‘‘Raymond M. Downey Post Georgia, as the ‘‘Major Lyn [FR 02-08284] 02715] Office Building’’. (Apr. 18, McIntosh Post Office McDonnell Douglas; TREASURY DEPARTMENT 2002; 116 Stat. 130) Internal Revenue Service Building’’. (Apr. 18, 2002; 116 comments due by 5-6-02; Stat. 123) Last List April 8, 2002 published 3-21-02 [FR 02- Income taxes: 06795] Unit-livestock-price method; H.R. 1748/P.L. 107–161 Textron Lycoming; public hearing; comments To designate the facility of the comments due by 5-10- due by 5-6-02; published United States Postal Service 2-4-02 [FR 02-02625] located at 805 Glen Burnie Public Laws Electronic 02; published 3-11-02 [FR Notification Service 02-05691] TREASURY DEPARTMENT Road in Richmond, Virginia, Thrift Supervision Office as the ‘‘Tom Bliley Post Office (PENS) Airworthiness standards: Building’’. (Apr. 18, 2002; 116 Special conditions— Mutual savings associations, mutual holding company Stat. 124) Airbus Industrie Model reorganizations, and H.R. 1749/P.L. 107–162 PENS is a free electronic mail A340-500 and -600 conversions from mutual to To designate the facility of the notification service of newly series airplanes; stock form; comments due United States Postal Service enacted public laws. To comments due by 5-8- by 5-9-02; published 4-9-02 located at 685 Turnberry Road subscribe, go to http:// 02; published 4-8-02 [FR 02-07979] in Newport News, Virginia, as hydra.gsa.gov/archives/ [FR 02-07963] VETERANS AFFAIRS the ‘‘Herbert H. Bateman Post publaws-l.html or send E-mail Class D airspace; comments DEPARTMENT Office Building’’. (Apr. 18, to [email protected] due by 5-6-02; published 4- Adjudication; pensions, 2002; 116 Stat. 125) with the following text 2-02 [FR 02-07853] compensation, dependency, H.R. 2577/P.L. 107–163 message: Class E airspace; comments etc.: To designate the facility of the SUBSCRIBE PUBLAWS-L due by 5-6-02; published 4- De novo review; time limit United States Postal Service Your Name. 2-02 [FR 02-07854] for requests; comments located at 310 South State TRANSPORTATION due by 5-10-02; published Street in St. Ignace, Michigan, Note: This service is strictly DEPARTMENT 3-11-02 [FR 02-05785] as the ‘‘Bob Davis Post Office for E-mail notification of new National Highway Traffic Building’’. (Apr. 18, 2002; 116 laws. The text of laws is not Safety Administration LIST OF PUBLIC LAWS Stat. 126) available through this service. Fuel economy standards: H.R. 2876/P.L. 107–164 PENS cannot respond to Light trucks; 2005-2010 This is a continuing list of To designate the facility of the specific inquiries sent to this model years; comments public bills from the current United States Postal Service address.
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TABLE OF EFFECTIVE DATES AND TIME PERIODS—MAY 2002
This table is used by the Office of the dates, the day after publication is A new table will be published in the Federal Register to compute certain counted as the first day. first issue of each month. dates, such as effective dates and When a date falls on a weekend or comment deadlines, which appear in holiday, the next Federal business day agency documents. In computing these is used. (See 1 CFR 18.17)
DATE OF FR 15 DAYS AFTER 30 DAYS AFTER 45 DAYS AFTER 60 DAYS AFTER 90 DAYS AFTER PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION
May 1 May 16 May 31 June 17 July 1 July 30
May 2 May 17 June 3 June 17 July 1 July 31
May 3 May 20 June 3 June 17 July 2 August 1
May 6 May 21 June 5 June 20 July 5 August 5
May 7 May 22 June 6 June 21 July 8 August 5
May 8 May 23 June 7 June 24 July 8 August 6
May 9 May 24 June 10 June 24 July 8 August 7
May 10 May 28 June 10 June 24 July 9 August 8
May 13 May 28 June 12 June 27 July 12 August 12
May 14 May 29 June 13 June 28 July 15 August 12
May 15 May 30 June 14 July 1 July 15 August 13
May 16 May 31 June 17 July 1 July 15 August 14
May 17 June 3 June 17 July 1 July 16 August 15
May 20 June 4 June 19 July 5 July 19 August 19
May 21 June 5 June 20 July 5 July 22 August 19
May 22 June 6 June 21 July 8 July 22 August 20
May 23 June 7 June 24 July 8 July 22 August 21
May 24 June 10 June 24 July 8 July 23 August 22
May 28 June 12 June 27 July 12 July 29 August 26
May 29 June 13 June 28 July 15 July 29 August 27
May 30 June 14 July 1 July 15 July 29 August 28
May 31 June 17 July 1 July 15 July 30 August 29
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